================================================================================
XXXXXX XXXXXXX CAPITAL I INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
LNR PARTNERS, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2007
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ12
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................................................6
Section 1.2 Calculations Respecting Mortgage Loans.......................................................83
Section 1.3 Calculations Respecting Accrued Interest.....................................................84
Section 1.4 Interpretation...............................................................................84
Section 1.5 ARD Loans....................................................................................85
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage Loans............................86
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................................................87
Section 2.2 Acceptance by Trustee and Custodian..........................................................90
Section 2.3 Seller's Repurchase of Mortgage Loans for Material Document Defects and Material
Breaches of Representations and Warranties...................................................93
Section 2.4 Representations and Warranties...............................................................98
Section 2.5 Conveyance of Interests......................................................................99
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans......................................99
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates............................................................................100
Section 3.2 Registration................................................................................101
Section 3.3 Transfer and Exchange of Certificates.......................................................101
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates...........................................107
Section 3.5 Persons Deemed Owners.......................................................................108
Section 3.6 Access to List of Certificateholders' Names and Addresses...................................108
Section 3.7 Book-Entry Certificates.....................................................................108
Section 3.8 Notices to Clearing Agency..................................................................112
Section 3.9 Definitive Certificates.....................................................................112
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.............................................................113
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu
Mortgage Loans..............................................................................114
Section 4.2 Servicing Advances..........................................................................115
Section 4.3 Advances by the Trustee.....................................................................116
i
Section 4.4 Evidence of Nonrecoverability...............................................................116
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a
Mortgage Loan...............................................................................117
Section 4.6 Reimbursement of Advances and Advance Interest..............................................118
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.................................................................................120
Section 5.2 Application of Funds in the Certificate Account and Interest Reserve Account................124
Section 5.3 Distribution Account and Reserve Account....................................................135
Section 5.4 Paying Agent Reports........................................................................139
Section 5.5 Paying Agent Tax Reports....................................................................141
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.....................................................................142
Section 6.2 REMIC I.....................................................................................142
Section 6.3 REMIC II....................................................................................143
Section 6.4 Reserved....................................................................................144
Section 6.5 REMIC III and Excess Interest Grantor Trust.................................................144
Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls Due to
Nonrecoverability...........................................................................152
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls.............155
Section 6.8 Adjustment of Servicing Fees................................................................155
Section 6.9 Appraisal Reductions........................................................................155
Section 6.10 Compliance with Withholding Requirements....................................................156
Section 6.11 Prepayment Premiums.........................................................................156
Section 6.12 Other Distributions.........................................................................157
ARTICLE VII
CONCERNING THE TRUSTEE, THE CUSTODIAN, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee, the Custodian and the Paying Agent...................................160
Section 7.2 Certain Matters Affecting the Trustee, the Custodian and the Paying Agent...................162
Section 7.3 The Trustee and the Paying Agent Not Liable for Certificates or Interests or
Mortgage Loans..............................................................................164
Section 7.4 The Trustee and the Paying Agent May Own Certificates.......................................165
Section 7.5 Eligibility Requirements for the Trustee and the Paying Agent...............................165
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent..................................166
Section 7.7 Successor Trustee or Paying Agent...........................................................168
Section 7.8 Merger or Consolidation of Trustee, Custodian or Paying Agent...............................169
ii
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian............................169
Section 7.10 Authenticating Agents.......................................................................171
Section 7.11 Indemnification of Trustee, the Custodian and the Paying Agent..............................172
Section 7.12 Fees and Expenses of Trustee and the Paying Agent...........................................174
Section 7.13 Collection of Moneys........................................................................174
Section 7.14 Trustee To Act; Appointment of Successor....................................................174
Section 7.15 Notification to Holders.....................................................................177
Section 7.16 Representations and Warranties of the Trustee, the Custodian and the Paying Agent...........177
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the
Trustee, the Custodian and the Paying Agent.................................................179
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to Certificateholders..................179
Section 7.19 Appointment of a Fiscal Agent...............................................................180
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties........................................................181
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master
Servicer....................................................................................184
Section 8.3 Master Servicer's General Power and Duties..................................................184
Section 8.4 Primary Servicing and Sub-Servicing.........................................................192
Section 8.5 Servicers May Own Certificates..............................................................194
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other...........................194
Section 8.7 Enforcement of Due-On-Sale and Due-on-Encumbrance Clauses; Assumption
Agreements; Other Provisions................................................................197
Section 8.8 Trustee and Custodian to Cooperate; Release of Custodian Mortgage Files.....................201
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee for the Benefit of the Certificateholders...........................................202
Section 8.10 Servicing Compensation......................................................................203
Section 8.11 Master Servicer Reports; Account Statements.................................................204
Section 8.12 Reserved....................................................................................206
Section 8.13 Reserved....................................................................................206
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the Mortgaged Properties................206
Section 8.15 Other Available Information and Certain Rights of the Master Servicer.......................207
Section 8.16 Rule 144A Information.......................................................................210
Section 8.17 Inspections.................................................................................210
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.................................211
Section 8.19 Specially Serviced Mortgage Loans...........................................................217
Section 8.20 Representations, Warranties and Covenants of the Master Servicer............................217
Section 8.21 Merger or Consolidation.....................................................................219
Section 8.22 Resignation of Master Servicer..............................................................219
Section 8.23 Assignment or Delegation of Duties by Master Servicer.......................................220
Section 8.24 Limitation on Liability of the Master Servicer and Others...................................220
iii
Section 8.25 Indemnification; Third-Party Claims.........................................................223
Section 8.26 Reserved....................................................................................226
Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions...............................226
Section 8.28 Termination.................................................................................226
Section 8.29 Procedure Upon Termination..................................................................229
Section 8.30 Operating Adviser Contact with Master Servicer and Special Servicer.........................231
Section 8.31 Class A-2FL Swap Contract...................................................................231
Section 8.32 Class A-MFL Swap Contract...................................................................233
Section 8.33 Class A-JFL Swap Contract...................................................................235
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer..................................................................237
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer.................238
Section 9.3 Sub-Servicers...............................................................................239
Section 9.4 Special Servicer General Powers and Duties..................................................239
Section 9.5 Reserved....................................................................................242
Section 9.6 Release of Mortgage Files...................................................................242
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for
the Trustee.................................................................................243
Section 9.8 Representations, Warranties and Covenants of the Special Servicer...........................244
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies...............245
Section 9.10 Presentment of Claims and Collection of Proceeds............................................247
Section 9.11 Compensation to the Special Servicer........................................................247
Section 9.12 Realization Upon Defaulted Mortgage Loans...................................................248
Section 9.13 Foreclosure.................................................................................250
Section 9.14 Operation of REO Property...................................................................251
Section 9.15 Sale of REO Property........................................................................254
Section 9.16 Realization on Collateral Security..........................................................255
Section 9.17 Reserved....................................................................................255
Section 9.18 Reserved....................................................................................255
Section 9.19 Reserved....................................................................................255
Section 9.20 Merger or Consolidation.....................................................................255
Section 9.21 Resignation of Special Servicer.............................................................256
Section 9.22 Assignment or Delegation of Duties by Special Servicer......................................257
Section 9.23 Limitation on Liability of the Special Servicer and Others..................................257
Section 9.24 Indemnification; Third-Party Claims.........................................................260
Section 9.25 Reserved....................................................................................261
Section 9.26 Special Servicer May Own Certificates.......................................................262
Section 9.27 Tax Reporting...............................................................................262
Section 9.28 Application of Funds Received...............................................................262
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions...............................262
Section 9.30 Termination.................................................................................263
iv
Section 9.31 Procedure Upon Termination..................................................................266
Section 9.32 Certain Special Servicer Reports............................................................267
Section 9.33 Special Servicer to Cooperate with the Master Servicer, the Trustee and Paying
Agent.......................................................................................270
Section 9.34 Reserved....................................................................................271
Section 9.35 Litigation Control..........................................................................271
Section 9.36 Sale of Defaulted Mortgage Loans............................................................273
Section 9.37 Operating Adviser; Elections................................................................276
Section 9.38 Limitation on Liability of Operating Adviser................................................277
Section 9.39 Duties of Operating Adviser.................................................................277
Section 9.40 Rights of the Holder of a B Note............................................................279
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans...................281
Section 10.2 Procedure Upon Termination of Trust.........................................................283
Section 10.3 Additional Trust Termination Requirements...................................................284
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.............................................................285
Section 11.2 Access to List of Holders...................................................................286
Section 11.3 Acts of Holders of Certificates.............................................................287
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration........................................................................288
Section 12.2 Prohibited Transactions and Activities......................................................293
Section 12.3 Modifications of Mortgage Loans.............................................................293
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status............................294
Section 12.5 Class A-2FL Grantor Trust, Class A-MFL Grantor Trust, Class A-JFL Grantor Trust
and Excess Interest Grantor Trust...........................................................294
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness.......................................................296
Section 13.2 Information to be Provided by the Master Servicer, the Special Servicer, any
Primary Servicer and the Paying Agent.......................................................297
Section 13.3 Filing Obligations..........................................................................299
Section 13.4 Form 10-D Filings...........................................................................299
Section 13.5 Form 10-K Filings...........................................................................302
Section 13.6 Xxxxxxxx-Xxxxx Certification................................................................304
Section 13.7 Form 8-K Filings............................................................................306
v
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings; Amendments to Exchange Act
Reports.....................................................................................307
Section 13.9 Annual Compliance Statements................................................................309
Section 13.10 Annual Reports on Assessment of Compliance with Servicing Criteria..........................310
Section 13.11 Annual Independent Public Accountants' Servicing Report.....................................311
Section 13.12 Indemnification.............................................................................312
Section 13.13 Amendments..................................................................................314
Section 13.14 Exchange Act Report Signatures..............................................................315
Section 13.15 Termination of the Paying Agent and Sub-Servicers...........................................315
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement.................................................................316
Section 14.2 Entire Agreement............................................................................316
Section 14.3 Amendment...................................................................................316
Section 14.4 GOVERNING LAW...............................................................................319
Section 14.5 Notices.....................................................................................319
Section 14.6 Severability of Provisions..................................................................319
Section 14.7 Indulgences; No Waivers.....................................................................320
Section 14.8 Headings Not to Affect Interpretation.......................................................320
Section 14.9 Benefits of Agreement.......................................................................320
Section 14.10 Special Notices to the Rating Agencies......................................................320
Section 14.11 Counterparts................................................................................323
Section 14.12 Intention of Parties........................................................................323
Section 14.13 Recordation of Agreement....................................................................324
Section 14.14 Rating Agency Monitoring Fees...............................................................324
Section 14.15 Acknowledgement by Primary Servicer.........................................................324
vi
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-2FL Certificate
EXHIBIT A-5 Form of Class A-3 Certificate
EXHIBIT A-6 Form of Class A-4 Certificate
EXHIBIT A-7 Form of Class A-5 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 A-JFL 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 O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class Q Certificate
EXHIBIT A-27 Form of Class S Certificate
EXHIBIT A-28 Form of Class T Certificate
EXHIBIT A-29 Form of Class R-I Certificate
EXHIBIT A-30 Form of Class R-II Certificate
EXHIBIT A-31 Form of Class R-III Certificate
EXHIBIT A-32 Form of Class X Certificate
EXHIBIT B-1 Form of Initial Certification of Custodian (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Custodian (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive Privately
Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive Privately
Offered Certificates (Section 3.3(c))
i
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Reserved
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate (Section 3.7(d))
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid ("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMCH)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a))
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Reserved
EXHIBIT V Reserved
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of Mortgage Loans
EXHIBIT AA Form of Xxxxx Fargo primary servicing agreement (Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 13.6)
EXHIBIT CC-1 Reporting Servicer Form of Performance Certification (Section 13.6)
EXHIBIT DD Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I MSMCH Loan Schedule
SCHEDULE II Reserved
SCHEDULE III Reserved
SCHEDULE IV Reserved
SCHEDULE V Mortgage Loans for Which Disbursement of Earnouts and Holdbacks to be processed by
Special Servicer
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts (Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g) is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
ii
SCHEDULE IX Reserved
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by an Environmental
Insurance Policy
SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after the end of a Collection
Period
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose Servicing Fees Accrue on a
30/360 Basis
SCHEDULE XIII Reserved
SCHEDULE XIV Reserved
SCHEDULE XV Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE XVI Additional Form 10-D Disclosure
SCHEDULE XVII Additional Form 10-K Disclosure
SCHEDULE XVIII Form 8-K Disclosure Information
SCHEDULE XIX Additional Disclosure Notification
SCHEDULE XX Seller Sub-Servicers
iii
THIS POOLING AND SERVICING AGREEMENT is dated as of July 1, 2007
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), LNR PARTNERS, INC., as
special servicer (the "Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION, as
trustee of the Trust (the "Trustee") and custodian, and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, only in its capacity as paying agent (the "Paying Agent"),
authenticating agent and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC (successor-in-interest by
merger to Xxxxxx Xxxxxxx Mortgage Capital Inc.), as seller ("MSMCH"), and will
be the owner of the Mortgage Loans and the other property being conveyed by it
to the Trustee for inclusion in the Trust which is hereby created. On the
Closing Date, the Depositor will acquire (i) the REMIC I Regular Interests and
the Class R-I Certificates as consideration for its transfer to the Trust of the
Mortgage Loans (other than any Excess Interest payable thereon) and the other
property constituting REMIC I; (ii) the REMIC II Regular Interests and the Class
R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; (iii) the REMIC III Certificates, the Class A-2FL
Regular Interest, the Class A-MFL Regular Interest and the Class A-JFL Regular
Interest as consideration for its transfer of the REMIC II Regular Interests to
the Trust; (iv) the Class T Certificates as consideration for its transfer to
the Trust of the right to receive any Excess Interest (such right, and any
amounts on deposit from time to time in the Excess Interest Sub-account (as
hereinafter defined), the "Excess Interest Grantor Trust"); (v) the Class A-2FL
Certificates as consideration for its transfer of the Class A-2FL Regular
Interst and the Class A-2FL Swap Contract to the Trust; (vi) the Class A-MFL
Certificates as consideration for its transfer of the Class A-MFL Regular
Interst and the Class A-MFL Swap Contract to the Trust; and (vii) the Class
A-JFL Certificates as consideration for its transfer of the Class A-JFL Regular
Interest and the Class A-JFL Swap Contract to the Trust. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (A) the REMIC I Regular Interests and the Class
R-I Certificates representing in the aggregate the entire beneficial ownership
of REMIC I, (B) the REMIC II Regular Interests and the Class R-II Certificates
representing in the aggregate the entire beneficial ownership of REMIC II, (C)
the REMIC III Certificates, the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest representing in the
aggregate the entire beneficial ownership of REMIC III, (D) the Class T
Certificates representing in the aggregate the entire beneficial interest in the
Excess Interest Grantor Trust, (E) the Class A-2FL Certificates representing in
the aggregate the entire beneficial ownership of the Class A-2FL Grantor Trust,
(F) the Class A-MFL Certificates representing in the aggregate the entire
beneficial ownership of the Class A-MFL Grantor Trust and (G) the Class A-JFL
Certificates representing in the aggregate the entire beneficial ownership of
the Class A-JFL Grantor Trust. All covenants and agreements made by the
Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust are for the benefit of the Holders of the
REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular
Certificates, the Residual Certificates, the Class T Certificates, the Class
A-2FL Regular Interest, the Class A-2FL Certificates, the Class A-MFL Regular
Interest, the Class A-MFL Certificates, the Class A-JFL Regular Interest and the
Class A-JFL Certificates and the Swap Counterparty. The parties hereto
are entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class A Senior, Class A-M, Class A-MFL, Class A-J, Class A-JFL,
Class B, Class C and Class D Certificates (collectively, the "Registered
Certificates") will be offered for sale pursuant to the prospectus (the
"Prospectus") dated June 22, 2007, as supplemented by each of the free writing
prospectuses dated July 12, 2007, July 25, 2007 and July 26, 2007 (collectively,
the "Free Writing Prospectus", and together with the Prospectus, the
"Preliminary Prospectus Supplement"), and as further supplemented by the final
prospectus supplement dated July 26, 2007 (the "Prospectus Supplement", and
together with the Prospectus, the "Final Prospectus Supplement"), and the Class
X, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S and Class T Certificates will be offered
for sale pursuant to a Private Placement Memorandum dated July 26, 2007.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a "latest possible maturity date" set to the Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. The Class R-I Certificate will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
The REMIC II Regular Interests have the Pass-Through Rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class designation, the
corresponding REMIC II Regular Interest (the "CORRESPONDING REMIC II REGULAR
INTEREST") and the initial Certificate Balance for each Class of Principal
Balance Certificates (the "CORRESPONDING CERTIFICATES").
CORRESPONDING INITIAL REMIC II
INITIAL CLASS REMIC II REGULAR INTEREST
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE
CERTIFICATES BALANCE INTERESTS BALANCE
------------- ------------- -------------- -----------------
Class A-1 $40,000,000 A-1 $40,000,000
Class A-1A $366,041,000 A-1A $366,041,000
Class A-2 $289,100,000 A-2 $289,100,000
Class A-2FL(1) $395,000,000 A-2FL $395,000,000
2
CORRESPONDING INITIAL REMIC II
INITIAL CLASS REMIC II REGULAR INTEREST
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE
CERTIFICATES BALANCE INTERESTS BALANCE
------------- ------------- -------------- -----------------
Class A-3 $131,500,000 A-3 $131,500,000
Class A-4 $66,354,000 A-4 $66,354,000
Class A-5 $83,000,000 A-5 $83,000,000
Class A-M $170,856,000 A-M $170,856,000
Class A-MFL(2) $25,000,000 A-MFL $25,000,000
Class A-J $53,000,000 A-J $53,000,000
Class A-JFL(3) $91,444,000 A-JFL $91,444,000
Class B $41,620,000 B $41,620,000
Class C $22,033,000 C $22,033,000
Class D $24,482,000 D $24,482,000
Class E $14,690,000 E $14,690,000
Class F $24,482,000 F $24,482,000
Class G $22,034,000 G $22,034,000
Class H $22,033,000 H $22,033,000
Class J $14,690,000 J $14,690,000
Class K $4,896,000 K $4,896,000
Class L $7,345,000 L $7,345,000
Class M $4,896,000 M $4,896,000
Class N $4,897,000 N $4,897,000
Class O $4,896,000 O $4,896,000
Class P $4,896,000 P $4,896,000
Class Q $4,896,000 Q $4,896,000
Class S $24,483,351 S $24,483,351
(1) REMIC II Regular Interest A-2FL corresponds to the Class A-2FL Regular
Interest, which has an initial Certificate Balance of $395,000,000.
(2) REMIC II Regular Interest A-MFL corresponds to the Class A-MFL Regular
Interest, which has an initial Certificate Balance of $25,000,000.
(3) REMIC II Regular Interest A-JFL corresponds to the Class A-JFL Regular
Interest, which has an initial Certificate Balance of $91,444,000.
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates (or, in the
case of the Class A-2FL Certificates, the Class A-MFL Certificates or the Class
A-JFL Certificates, the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest or the Class A-JFL Regular Interest, respectively, represented thereby)
comprising the interests in REMIC III created hereunder.
3
INITIAL
AGGREGATE
REMIC III CERTIFICATE
INTEREST INITIAL PASS- BALANCE OR FINAL SCHEDULED
DESIGNATION THROUGH RATE(1) NOTIONAL AMOUNT DISTRIBUTION DATE(2)
-------------- --------------- --------------- --------------------
Class A-1 5.519% $40,000,000 4/12/2012
Class A-1A 5.812% $366,041,000 4/12/2017
Class A-2 5.812% $289,100,000 6/12/2012
Class A-2FL(3) 5.812% $395,000,000 6/12/2012
Class A-3 5.812% $131,500,000 1/12/2014
Class A-4 5.812% $66,354,000 8/12/2016
Class A-5 5.812% $83,000,000 3/12/2017
Class A-M 5.812% $170,856,000 4/12/2017
Class A-MFL(4) 5.812% $25,000,000 4/12/2017
Class A-J 5.812% $53,000,000 5/12/2017
Class A-JFL(5) 5.812% $91,444,000 5/12/2017
Class B 5.812% $41,620,000 5/12/2017
Class C 5.812% $22,033,000 6/12/2017
Class D 5.812% $24,482,000 6/12/2017
Class E 5.812% $14,690,000 6/12/2017
Class F 5.812% $24,482,000 6/12/2017
Class G 5.812% $22,034,000 6/12/2017
Class H 5.812% $22,033,000 6/12/2017
Class J 5.812% $14,690,000 6/12/2017
Class K 5.812% $24,482,000 6/12/2017
Class L 5.812% $22,034,000 6/12/2017
Class M 5.812% $22,033,000 6/12/2017
Class N 5.281% $14,690,000 6/12/2017
Class O 5.281% $4,896,000 6/12/2017
Class P 5.281% $7,345,000 11/12/2017
Class Q 5.281% $4,896,000 11/12/2017
Class S 5.281% $4,897,000 6/12/2022
Class X 0.027% $1,958,564,351 6/12/2022
Class R-III(6) N/A N/A N/A
(1) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (other than the Residual
Certificates) will be determined as set forth herein under the definition
of "Pass-Through Rate." The initial Pass-Through Rates shown above are
approximate for the Class E, Class F, Class G, Class H and Class X
Certificates.
(2) The Final Scheduled Distribution Date for each Class of Certificates is
the Distribution Date on which such Class is expected to be paid in full,
assuming that timely payments (and no prepayments) will be made on the
Mortgage Loans in accordance with their terms (except that each ARD Loan
will be prepaid in full on its Anticipated Repayment Date). Each ARD Loan
is assumed to repay in full on its Anticipated Repayment Date.
(3) The Class A-2FL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-2FL Grantor
Trust, which is comprised of (i) the Class A-2FL Regular Interest (bearing
a per annum fixed rate of interest equal to the Weighted Average REMIC I
Net Mortgage Rate) and the Class A-2FL Swap Contract and all payments
under the Class A-2FL Regular Interest and the Class A-2FL Swap Contract,
(ii) all funds and assets on deposit from time to time in the Class A-2FL
Floating Rate Account and (iii) proceeds of all of the foregoing. The
parties intend that the portion of the Trust representing the Class A-2FL
Grantor Trust shall be treated as a grantor trust under Subpart E of Part
1 of Subchapter J of Chapter 1 of Subtitle A of the Code.
4
(4) The Class A-MFL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-MFL Grantor
Trust, which is comprised of (i) the Class A-MFL Regular Interest (bearing
a per annum fixed rate of interest equal to the Weighted Average REMIC I
Net Mortgage Rate) and the Class A-MFL Swap Contract and all payments
under the Class A-MFL Regular Interest and the Class A-MFL Swap Contract,
(ii) all funds and assets on deposit from time to time in the Class A-MFL
Floating Rate Account and (iii) proceeds of all of the foregoing. The
parties intend that the portion of the Trust representing the Class A-MFL
Grantor Trust shall be treated as a grantor trust under Subpart E of Part
1 of Subchapter J of Chapter 1 of Subtitle A of the Code.
(5) The Class A-JFL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-JFL Grantor
Trust, which is comprised of (i) the Class A-JFL Regular Interest (bearing
a per annum fixed rate of interest equal to the Weighted Average REMIC I
Net Mortgage Rate) and the Class A-JFL Swap Contract and all payments
under the Class A-JFL Regular Interest and the Class A-JFL Swap Contract,
(ii) all funds and assets on deposit from time to time in the Class A-JFL
Floating Rate Account and (iii) proceeds of all of the foregoing. The
parties intend that the portion of the Trust representing the Class A-JFL
Grantor Trust shall be treated as a grantor trust under Subpart E of Part
1 of Subchapter J of Chapter 1 of Subtitle A of the Code.
(6) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of REMIC III Regular Interests have been reduced to zero and any
Realized Losses previously allocated thereto (and any interest thereon)
have been reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,958,564,352.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests will be designated as the "regular interests" in REMIC III and the
Class R-III Certificates will be designated as the sole Class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
EXCESS INTEREST GRANTOR TRUST, CLASS A-2FL GRANTOR TRUST, CLASS
A-MFL GRANTOR TRUST AND CLASS A-JFL GRANTOR TRUST
The parties intend that the portions of the Trust consisting of (i)
Excess Interest and the Excess Interest Sub-account (such portion of the Trust,
the "Excess Interest Grantor Trust"), (ii) the segregated pool of assets
consisting of the Class A-2FL Regular Interest, the
5
Class A-2FL Swap Contract and the Class A-2FL Floating Rate Account (such
portion of the Trust, the "Class A-2FL Grantor Trust"), (iii) the segregated
pool of assets consisting of the Class A-MFL Regular Interest, the Class A-MFL
Swap Contract and the Class A-MFL Floating Rate Account (such portion of the
Trust, the "Class A-MFL Grantor Trust") and (iv) the segregated pool of assets
consisting of the Class A-JFL Regular Interest, the Class A-JFL Swap Contract
and the Class A-JFL Floating Rate Account (such portion of the Trust, the "Class
A-JFL Grantor Trust") will each be treated as a separate grantor trust under
Subpart E of Part 1 of Subchapter J of the Code. The Class T Certificates
represent pro rata undivided beneficial interests in the Excess Interest Grantor
Trust and will have no Certificate Balance and no Pass-Through Rate. The Class
A-2FL Certificates, the Class A-MFL Certificates and the Class A-JFL
Certificates represent pro rata undivided beneficial interests in the Class
A-2FL Grantor Trust, the Class A-MFL Grantor Trust and the Class A-JFL Grantor
Trust, respectively.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the mortgage
note (or notes) included in the Trust that is senior in right of payment to the
related B Note or any other related subordinated note(s) to the extent set forth
in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of the Certificate Account (but which are not included in the
Trust) created and maintained by the Master Servicer pursuant to Section 5.1(c)
on behalf of the holder of a related B Note. Any such sub-account(s) shall be
maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means the Columbia Center A/B Mortgage Loan, the
Parkoff Portfolio A/B Mortgage Loan, the Ramada Plaza Beach Resort A/B Mortgage
Loan, the Timberland Buildings A/B Mortgage Loan or any other Mortgage Loan
serviced under this Agreement that is divided into a senior mortgage note and
one or more subordinated mortgage note(s), which senior mortgage note is
included in the Trust. References herein to an A/B Mortgage Loan shall be
construed to refer to the aggregate indebtedness under the related A Note and
the related subordinate note(s).
"ACCOUNTANT" means a person engaged in the practice of accounting
who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
other than the Residual Certificates, interest accrued during the Interest
Accrual Period relating to such Distribution Date on the Aggregate Certificate
Balance of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount. Accrued Certificate Interest will be
calculated on the basis of a 360-day year consisting of twelve
6
30-day months (prior to the occurrence and continuation of a related Swap
Default or the termination of the related Swap Default), except in the case of
the Class A-2FL Certificates, the Class A-MFL Certificates and the Class A-JFL
Certificates, where, subject to Section 6.12, it will be calculated on the basis
of the actual number of days elapsed in the related Interest Accrual Period and
a 360-day year.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan and Loan Pair
and any Loan Group).
"ADDITIONAL DISCLOSURE NOTIFICATION" means the form of notification
to be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Schedule XIX.
"ADDITIONAL FORM 10-D DISCLOSURE" has the meaning set forth in
Section 13.4.
"ADDITIONAL FORM 10-K DISCLOSURE" has the meaning set forth in
Section 13.5.
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL SERVICER" means each Affiliate of the Master Servicer,
MSMCH, the Paying Agent, the Trustee, the Depositor or any of the Underwriters
that Services any of the Mortgage Loans and each Person, other than the Special
Servicer, who is not an Affiliate of the Master Servicer, MSMCH, the Paying
Agent, the Trustee, the Depositor or any of the Underwriters, and who Services
10% or more of the Mortgage Loans (based on their Principal Balance).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees; (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the
Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, any
applicable Non-Serviced Mortgage Loan Special Servicer, any Primary Servicer,
the Trustee, the Paying Agent (or any other Person) pursuant to the terms of
this Agreement; (iv) to the extent not otherwise paid, any federal, state, or
local taxes imposed on the Trust or its assets and paid from amounts on deposit
in the Certificate Account or Distribution Account; and (v) to the extent not
otherwise included in the calculation of a Realized Loss and not covered by
indemnification by one of the parties hereto or otherwise, any other
unanticipated cost, liability, or expense (or portion thereof) of the Trust
(including costs of collecting such amounts or other Additional Trust Expenses)
that the Trust has not recovered, and in the judgment of the Master Servicer (or
Special Servicer) will not, recover from the related Mortgagor or Mortgaged
Property or otherwise, including a Modification Loss described in clause (ii) of
the definition thereof; provided, however, that, in the case of an A/B Mortgage
Loan, "Additional Trust Expense" shall not include any of the foregoing amounts
that have been recovered from the related Mortgagor or Mortgaged Property as a
result of the subordination of the related B Note in accordance with the terms
of the related Intercreditor Agreement. Notwithstanding anything to the
contrary, "Additional Trust Expenses" shall not include
7
allocable overhead of the Master Servicer, the Special Servicer, any
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan
Special Servicer, the Trustee, the Authenticating Agent, the Custodian, the
Paying Agent or the Certificate Registrar, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses, and similar internal costs and expenses.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage
Loan, the sum of the Master Servicing Fee Rate, the Primary Servicing Fee Rate,
the Excess Servicing Fee Rate, the Trustee Fee Rate and in the case of any
Non-Serviced Mortgage Loan, the related Pari Passu Loan Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer,
the Special Servicer or the Trustee on outstanding Advances (other than
Unliquidated Advances) pursuant to Section 4.5 of this Agreement and any
interest payable to any Non-Serviced Mortgage Loan Master Servicer, any
Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Fiscal
Agent with respect to Pari Passu Loan Nonrecoverable Advances pursuant to
Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the Code,
if taken or not taken, as the case may be, would either (i) endanger the status
of any of the Class A-2FL Grantor Trust, the Class A-MFL Grantor Trust, the
Class A-JFL Grantor Trust or the Excess Interest Grantor Trust as a grantor
trust or (ii) result in the imposition of a tax upon the income of any of the
Class A-2FL Grantor Trust, the Class A-MFL Grantor Trust, the Class A-JFL
Grantor Trust or the Excess Interest Grantor Trust or any of their respective
assets or transactions.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
8
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests, the REMIC II Regular Interests or REMIC III Regular Interests (other
than the Class X Certificates), as the case may be, at any date of
determination. With respect to a Class of Principal Balance Certificates, REMIC
I Regular Interests, REMIC II Regular Interests or REMIC III Regular Interests
(other than the Class X Certificates), Aggregate Certificate Balance shall mean
the aggregate of the Certificate Balances of all Certificates or Interests, as
the case may be, of that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to each ARD Loan,
the anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair, not later than the earliest of (i) the date 120 days
after the occurrence of any delinquency in payment with respect to such Mortgage
Loan, A/B Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii)
the date 30 days after receipt of notice that the related Mortgagor has filed a
bankruptcy petition or the related Mortgagor has become the subject of
involuntary bankruptcy proceedings or the related Mortgagor has consented to the
filing of a bankruptcy proceeding against it or a receiver is appointed in
respect of the related Mortgaged Property, provided such petition or appointment
is still in effect, (iii) the date that is 30 days following the date the
related Mortgaged Property becomes an REO Property and (iv) the effective date
of any modification to a Money Term of a Mortgage Loan, A/B Mortgage Loan or
Loan Pair, other than an extension of the date that a Balloon Payment is due for
a period of less than six months from the original due date of such Balloon
Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum of (i) the
Scheduled Principal Balance of such Mortgage Loan, Loan Pair or A/B Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage Loan) less
the principal amount of any guaranty or surety bond with a rating of at least
"BBB-" (or its equivalent) by a nationally recognized statistical rating
organization and the undrawn principal amount of any letter of credit or debt
service reserve, if applicable, that is then securing such Mortgage Loan, A/B
Mortgage Loan or Loan Pair, (ii) to the extent not previously advanced by the
Master Servicer or the Trustee, all accrued and unpaid interest on such Mortgage
Loan, Loan Pair or A/B Mortgage Loan at a per annum rate equal to
9
the Mortgage Rate, (iii) all unreimbursed Advances (including Unliquidated
Advances) and interest on Advances (other than Unliquidated Advances) at the
Advance Rate with respect to such Mortgage Loan, Loan Pair or A/B Mortgage Loan,
and (iv) to the extent funds on deposit inany applicable Escrow Accounts are not
sufficient therefor, and to the extent not previously advanced by the Master
Servicer, the Special Servicer or the Trustee, all currently due and unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents and other amounts which were required to be deposited in any Escrow
Account (but were not deposited) in respect of such Mortgaged Property or REO
Property, as the case may be, over (B) 90% of the Appraised Value (net of any
prior mortgage liens) of such Mortgaged Property or REO Property as determined
by such Appraisal or internal valuation, as the case may be, plus the full
amount of any escrows held by or on behalf of the Trustee as security for the
Mortgage Loan, Loan Pair or A/B Mortgage Loan (less the estimated amount of the
obligations anticipated to be payable in the next twelve months to which such
escrows relate). Each Appraisal or internal valuation for a Required Appraisal
Loan shall be updated annually for so long as an Appraisal Reduction exists. The
Appraisal Reduction for each Required Appraisal Loan will be recalculated
annually based on subsequent Appraisals, internal valuations or updates. In
addition, the Operating Adviser (including, without limitation, any request of a
B Note holder, at its expense and to the extent provided for in the related
Intercreditor Agreement, with respect to the related A/B Mortgage Loan (or
Operating Adviser on their behalf) if there shall have been a determination that
such holder will no longer be the directing holder) may at any time request the
Special Servicer to obtain, at the Operating Adviser's expense, an updated
Appraisal, with a corresponding adjustment to the amount of the Appraisal
Reduction. Any Appraisal Reduction for any Mortgage Loan, Loan Pair or A/B
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan, Loan Pair or A/B Mortgage Loan. Each Appraisal
Reduction will be reduced to zero as of the date the related Mortgage Loan, Loan
Pair or A/B Mortgage Loan is brought current under the then current terms of the
Mortgage Loan, Loan Pair or A/B Mortgage Loan for at least three consecutive
months, and no Appraisal Reduction will exist as to any Mortgage Loan, Loan Pair
or A/B Mortgage Loan after it has been paid in full, liquidated, repurchased or
otherwise disposed of. Any Appraisal Reduction in respect of any Non-Serviced
Mortgage Loan shall be calculated in accordance with the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement based upon the applicable
allocation of the items set forth in clauses (A) and (B) above between the
Non-Serviced Mortgage Loans and the related Non-Serviced Companion Mortgage
Loans and all other related pari passu loans. Any Appraisal Reduction in respect
of any Loan Pair shall be allocated, as between a Serviced Pari Passu Mortgage
Loan and the related Serviced Companion Mortgage Loan, pro rata according to
their respective Principal Balances. Any Appraisal Reduction with respect to an
A/B Mortgage Loan shall be allocated first to the related B Note (or, if there
is more than one subordinated note, as set forth in the related Intercreditor
Agreement), up to the Principal Balance thereof, and any excess shall be
allocated to the related A Note. In the case of any Non-Serviced Mortgage Loan,
any Appraisal Reduction will be calculated in accordance with the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan),
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation and
10
(ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage
Loan, the portion of the appraised value allocable thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the
Mortgage Loan Schedule.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan or any B Note as to which advancing is required hereunder for its
Maturity Date (provided that such Balloon Mortgage Loan or B Note has not been
paid in full, and no Final Recovery Determination or other sale or liquidation
has occurred in respect thereof, on or before the end of the Collection Period
in which such Maturity Date occurs) and for any subsequent Due Date therefor as
of which such Balloon Mortgage Loan or such B Note remains outstanding and part
of the Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Balloon
Mortgage Loan or such B Note on such Due Date, if it had been required to
continue to accrue interest in accordance with its terms, and to pay principal
in accordance with the amortization schedule in effect immediately prior to, and
without regard to the occurrence of, its most recent Maturity Date (as such may
have been extended in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Balloon Mortgage Loan or such B Note granted or agreed to by the Master Servicer
or the Special Servicer pursuant to the terms hereof), and (ii) with respect to
any REO Mortgage Loan for any Due Date therefor as of which the related REO
Property remains part of the Trust, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan or B Note
described in the preceding clause of this definition, the Assumed Scheduled
Payment) that was due in respect of the related Mortgage Loan or the related B
Note on the last Due Date prior to its becoming an REO Mortgage Loan. The amount
of the Assumed Scheduled Payment for any A Note or B Note shall be calculated
solely by reference to the terms of such A Note or B Note, as applicable (as
modified in connection with any bankruptcy or similar proceeding involving the
related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to the terms hereof) and without regard to the remittance
provisions of the related Intercreditor Agreement.
11
"AUTHENTICATING AGENT" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth
in Section 4.6(a).
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of the following amounts (a)
all amounts on deposit in the Distribution Account as of the commencement of
business on such Distribution Date that represent payments and other collections
on or in respect of the Mortgage Loans and any REO Properties that were received
by the Master Servicer or the Special Servicer through the end of the related
Collection Period exclusive of (i) any such amounts that were deposited in the
Distribution Account in error, (ii) amounts that are payable or reimbursable to
any Person other than the Certificateholders (including amounts payable to the
Master Servicer in respect of unpaid Master Servicing Fees, any Primary Servicer
in respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts of one day's interest with respect to Interest Reserve Loans
deposited in the Interest Reserve Account, (v) in the case of each REO Property
related to an A/B Mortgage Loan or Loan Pair, all amounts received with respect
to such A/B Mortgage Loan or Loan Pair that are required to be paid to the
holder of the related B Note or Serviced Companion Mortgage Loan, as applicable,
pursuant to the terms of the related B Note or Serviced Companion Mortgage Loan,
as applicable, and the related Intercreditor Agreement or Loan Pair
Intercreditor Agreement (which amounts will be deposited into the related A/B
Loan Custodial Account or Serviced Companion Mortgage Loan Custodial Account, as
applicable, pursuant to Section 5.1(c) and withdrawn from such accounts pursuant
to Section 5.2(a)) and (vi) Scheduled Payments collected but due on a Due Date
subsequent to the related Collection Period and (b) if and to the extent not
already among the amounts described in clause (a), (i) the aggregate amount of
any P&I Advances made by the Master Servicer or the Trustee for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest payments made by the Master Servicer for
such Distribution Date pursuant to the terms hereof, and (iii) if such
Distribution Date occurs in March of any year, commencing March 2008 or on the
final Distribution Date, the aggregate of the Interest Reserve Amounts then held
on deposit in the Interest Reserve Account in respect of each Interest Reserve
Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a
12
remaining principal balance equal to or greater than 5% of its original
principal balance as of its stated maturity date, unless prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKING DAY" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates (except for the Class
A-2FL Certificates, the Class A-MFL Certificates and the Class A-JFL
Certificates), the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest or the Class A-JFL Regular Interest, a fraction (A) whose numerator is
the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate
on that Class of Certificates, the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest or the Class A-JFL Regular Interest and (ii) the Discount Rate
used in calculating the Prepayment Premium with respect to the Principal
Prepayment (or the current Discount Rate if not used in such calculation) and
(B) whose denominator is the difference between (i) the Mortgage Rate on the
related Mortgage Loan and (ii) the Discount Rate used in calculating the
Prepayment Premium with respect to that Principal Prepayment (or the current
Discount Rate if not used in such calculation), provided, however, that under no
circumstances will the Base Interest Fraction be greater than one. If the
Discount Rate referred to above is greater than or equal to the Mortgage Rate on
the related Mortgage Loan, then the Base Interest Fraction will equal zero;
provided, however, that if the Discount Rate referred to above is greater than
or equal to the Mortgage Rate on the related Mortgage Loan, but is less than the
Pass-Through Rate on that Class of Certificates, the Class A-2FL Regular
Interest, the Class A-MFL Regular Interest or the Class A-JFL Regular Interest,
then the Base Interest Fraction shall be equal to 1.0.
"BEACON SEATTLE & DC PORTFOLIO B NOTE" means, with respect to the
Beacon Seattle & DC Portfolio Mortgage Loan, the related subordinated B Note not
included in the Trust, which is subordinated in right of payment to the Beacon
Seattle & DC Portfolio Mortgage Loan to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement.
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN A-1" means the note
secured by the Beacon Seattle & DC Portfolio Pari Passu Mortgage on a pari passu
basis with the Beacon Seattle & DC Portfolio Pari Passu Loan that is included in
a securitization known as the Xxxxxx Xxxxxxx Capital I Trust 2007-IQ14. The
Beacon Seattle & DC Portfolio Companion Loan A-1 is not a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN A-4" means the note
secured by the Beacon Seattle & DC Portfolio Pari Passu Mortgage on a pari passu
basis with the
13
Beacon Seattle & DC Portfolio Pari Passu Loan that is included in a
securitization known as the Banc of America Commercial Mortgage Trust 2007-2.
The Beacon Seattle & DC Portfolio Companion Loan A-4 is not a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN A-5" means the note
secured by the Beacon Seattle & DC Portfolio Pari Passu Mortgage on a pari passu
basis with the Beacon Seattle & DC Portfolio Pari Passu Loan that is included in
a securitization known as the Bear Xxxxxxx Commercial Mortgage Trust 2007-PWR16.
The Beacon Seattle & DC Portfolio Companion Loan A-5 is not a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN A-6" means the note
secured by the Beacon Seattle & DC Portfolio Pari Passu Mortgage on a pari passu
basis with the Beacon Seattle & DC Portfolio Pari Passu Loan that is included in
a securitization known as the Wachovia Bank Commercial Mortgage Trust 2007-C31.
The Beacon Seattle & DC Portfolio Companion Loan A-6 is not a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN A-7" means the note
secured by the Beacon Seattle & DC Portfolio Pari Passu Mortgage on a pari passu
basis with the Beacon Seattle & DC Portfolio Pari Passu Loan that is included in
a securitization known as the Wachovia Bank Commercial Mortgage Trust 2007-C32.
The Beacon Seattle & DC Portfolio Companion Loan A-7 is not a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO COMPANION LOAN" means, collectively,
the Beacon Seattle & DC Portfolio Companion Loan A-1, the Beacon Seattle & DC
Portfolio Companion Loan A-4, the Beacon Seattle & DC Portfolio Companion Loan
A-5, the Beacon Seattle & DC Portfolio Companion Loan A-6, and the Beacon
Seattle & DC Portfolio Companion Loan A-7.
"BEACON SEATTLE & DC PORTFOLIO PARI PASSU LOAN" means the Mortgage
Loans designated as Mortgage Loan No. 3 on the Mortgage Loan Schedule, which are
secured on a pari passu basis with the Beacon Seattle & DC Portfolio Companion
Loan pursuant to the Beacon Seattle & DC Pari Passu Mortgage. The Beacon Seattle
& DC Pari Passu Loan is a "Mortgage Loan."
"BEACON SEATTLE & DC PORTFOLIO PARI PASSU MORTGAGE" means the
mortgage securing the Beacon Seattle & DC Portfolio Pari Passu Loan and the
Beacon Seattle & DC Portfolio Companion Loan.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as set forth in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, San Francisco,
California, Miami Beach, Florida or the principal cities in which the Special
Servicer, the Trustee, the Custodian, the Paying Agent or the Master Servicer
conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in Minneapolis, Minnesota, Columbia,
14
Maryland, New York, New York, Chicago, Illinois, Miami Beach, Florida or San
Francisco, California are authorized or obligated by law or executive order to
be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"CATEGORY 1 REQUEST" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are defined in any applicable Primary
Servicing Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or any
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
each of which shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class T Certificates, the Class X Certificates and the Residual
Certificates) or Interest (other than the Residual Certificates) as of any
Distribution Date, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2 or Section 6.3(a), as the case may be, and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate in reduction of Certificate Balance pursuant to Section 6.6, plus
(B) an amount equal to the amounts identified in clause (I)(C) of the definition
of Principal Distribution Amount with respect to such Distribution Date, such
increases to be allocated to the Principal Balance Certificates or Interests in
sequential order (i.e. to the most senior Class first), in each case up to the
amount of Realized Losses previously allocated thereto and not otherwise
reimbursed hereunder.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning set forth in the definition of
"Holder."
15
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class A-2FL Certificates, the Class A-MFL Certificates, the Class A-JFL
Certificates, the Class T Certificates, the Class R-I Certificates and the Class
R-II Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section 13.6
and shall also include such parties in an Other Securitization.
"CERTIFYING PERSON" has the meaning set forth in Section 13.6.
"CERTIFYING SERVICER" has the meaning set forth in Section 13.9.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests, REMIC III Certificates, the Class A-2FL Regular Interest, the Class
A-2FL Certificates, the Class A-MFL Regular Interest, the Class A-MFL
Certificates, the Class A-JFL Regular Interest or the Class A-JFL Certificates,
any Class of such Certificates or Interests.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-1A Certificates, the Class A-2 Certificates, the Class A-3 Certificates,
the Class A-4 Certificates, the Class A-5 Certificates and the Class A-2FL
Certificates, collectively.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2
CERTIFICATES," "CLASS A-2FL CERTIFICATES," "CLASS A-3 CERTIFICATES," "CLASS A-4
CERTIFICATES," "CLASS A-5 CERTIFICATES," "CLASS A-M CERTIFICATES," "CLASS A-MFL
CERTIFICATES," "CLASS A-J CERTIFICATES," "CLASS A-JFL CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F Certificates," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS P CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS S
CERTIFICATES," "CLASS T CERTIFICATES," "CLASS X Certificates," "CLASS R-I
CERTIFICATES," "CLASS R-II CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the
Certificates designated as "Class A-1," "Class A-1A," "Class A-2," "Class
A-2FL," "Class A-3," "Class A-4," "Class X-0," "Xxxxx X-X," "Class A-MFL,"
"Class A-J," "Class A-JFL," "Class B," "Class C," "Class D," "Class E," "Class
F," "Class G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N,"
"Class O," "Class P," "Class Q," "Class S," "Class T," "Class X," "Class R-I,"
"Class R-II" and "Class R-III" respectively, on the face thereof, in
substantially the form attached hereto as Exhibits.
"CLASS A-2FL AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-2FL Regular Interest received by the Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-2FL Regular
Interest pursuant to the Class A-2FL Swap Contract, including, but not limited
to, any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-2FL
Regular Interest for so long as the Class A-2FL Swap Contract is in effect; and
(b) all regularly scheduled interest payments required to be paid to the Swap
Counterparty in respect of the Class A-2FL Regular Interest pursuant to the
Class A-2FL Swap Contract.
16
"CLASS A-2FL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-2FL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in August 2007, by the Master
Servicer on behalf of the Trust to the Swap Counterparty pursuant to the Class
A-2FL Swap Contract at a rate equal to the Pass-Through Rate of the Class A-2FL
Regular Interest on the Class A-2FL Floating Rate Certificate Notional Amounts
subject to reduction in accordance with the Class A-2FL Swap Contract.
"CLASS A-2FL FLOATING RATE ACCOUNT" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Master Servicer
on behalf of the Trustee with respect to the Class A-2FL Certificates, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-2FL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ12, Floating Rate Account, Class A-2FL", respectively; provided,
that the Class A-2FL Floating Rate Account may be a subaccount of the
Distribution Account or the Certificate Account. The Class A-2FL Floating Rate
Account shall be an asset of the Class A-2FL Grantor Trust.
"CLASS A-2FL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-2FL Regular
Interest.
"CLASS A-2FL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-2FL Regular Interest and the Class A-2FL Swap
Contract and all payments under the Class A-2FL Regular Interest and the Class
A-2FL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-2FL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-2FL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-2FL Swap Contract
is in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the Class A-2FL Regular Interest pursuant to
the terms of the Class A-2FL Swap Contract during the related Interest Accrual
Period and (ii) amounts in respect of interest (including reimbursement of any
Prepayment Interest Shortfalls) received on the Class A-2FL Regular Interest not
required to be paid to the Swap Counterparty (which will arise due to the
netting provisions of the Class A-2FL Swap Contract or upon the termination or
expiration of the Class A-2FL Swap Contract). If the Swap Counterparty defaults
on its obligation to pay such interest to the Paying Agent, or if a Swap Default
occurs and is continuing or if the Class A-2FL Swap Contract is terminated, the
Class A-2FL Interest Distribution Amount will be an amount equal to the
Distributable Certificate Interest in respect of the Class A-2FL Regular
Interest, until such time as the Swap Default is cured, or such obligation is
paid, as the case may be, or until a replacement Class A-2FL Swap Contract is
obtained.
"CLASS A-2FL NET SWAP PAYMENT" has the meaning set forth in Section
8.31(g).
"CLASS A-2FL PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-2FL Regular Interest on such Distribution Date.
17
"CLASS A-2FL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-2FL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"CLASS A-2FL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of July 1, 2007, between the Swap Counterparty and the Trust, and the
Credit Support Annex (as defined in the Class A-2FL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-2FL SWAP COUNTERPARTY COLLATERAL ACCOUNT" has the meaning
set forth in Section 8.31(f).
"CLASS A-MFL AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-MFL Regular Interest received by the Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-MFL Regular
Interest pursuant to the Class A-MFL Swap Contract, including, but not limited
to, any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-MFL
Regular Interest for so long as the Class A-MFL Swap Contract is in effect; and
(b) all regularly scheduled interest payments required to be paid to the Swap
Counterparty in respect of the Class A-MFL Regular Interest pursuant to the
Class A-MFL Swap Contract.
"CLASS A-MFL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-MFL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in August 2007, by the Master
Servicer on behalf of the Trust to the Swap Counterparty pursuant to the Class
A-MFL Swap Contract at a rate equal to the Pass-Through Rate of the Class A-MFL
Regular Interest on the Class A-MFL Floating Rate Certificate Notional Amounts
subject to reduction in accordance with the Class A-MFL Swap Contract.
"CLASS A-MFL FLOATING RATE ACCOUNT" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Master Servicer
on behalf of the Trustee with respect to the Class A-MFL Certificates, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-MFL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ12, Floating Rate Account, Class A-MFL", respectively; provided,
that the Class A-MFL Floating Rate Account may be a subaccount of the
Distribution Account or the Certificate Account. The Class A-MFL Floating Rate
Account shall be an asset of the Class A-MFL Grantor Trust.
"CLASS A-MFL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-MFL Regular
Interest.
18
"CLASS A-MFL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-MFL Regular Interest and the Class A-MFL Swap
Contract and all payments under the Class A-MFL Regular Interest and the Class
A-MFL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-MFL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-MFL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-MFL Swap Contract
is in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the Class A-MFL Regular Interest pursuant to
the terms of the Class A-MFL Swap Contract during the related Interest Accrual
Period and (ii) amounts in respect of interest (including reimbursement of any
Prepayment Interest Shortfalls) received on the Class A-MFL Regular Interest not
required to be paid to the Swap Counterparty (which will arise due to the
netting provisions of the Class A-MFL Swap Contract or upon the termination or
expiration of the Class A-MFL Swap Contract). If the Swap Counterparty defaults
on its obligation to pay such interest to the Paying Agent, or if a Swap Default
occurs and is continuing or if the Class A-MFL Swap Contract is terminated, the
Class A-MFL Interest Distribution Amount will be an amount equal to the
Distributable Certificate Interest in respect of the Class A-MFL Regular
Interest, until such time as the Swap Default is cured, or such obligation is
paid, as the case may be, or until a replacement Class A-MFL Swap Contract is
obtained.
"CLASS A-MFL NET SWAP PAYMENT" has the meaning set forth in Section
8.32(g).
"CLASS A-MFL PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-MFL Regular Interest on such Distribution Date.
"CLASS A-MFL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-MFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"CLASS A-MFL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of July 1, 2007, between the Swap Counterparty and the Trust, and the
Credit Support Annex (as defined in the Class A-MFL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-MFL SWAP COUNTERPARTY COLLATERAL ACCOUNT" has the meaning
set forth in Section 8.32(f).
"CLASS A-JFL AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-JFL Regular Interest received by the Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-JFL Regular
Interest pursuant to the Class A-JFL Swap Contract, including, but not limited
to, any termination payment, but in
19
the case of both (i) and (ii) excluding the following: (a) all amounts of
Prepayment Premiums allocated to the Class A-JFL Regular Interest for so long as
the Class A-JFL Swap Contract is in effect; and (b) all regularly scheduled
interest payments required to be paid to the Swap Counterparty in respect of the
Class A-JFL Regular Interest pursuant to the Class A-JFL Swap Contract.
"CLASS A-JFL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-JFL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in August 2007, by the Master
Servicer on behalf of the Trust to the Swap Counterparty pursuant to the Class
A-JFL Swap Contract at a rate equal to the Pass-Through Rate of the Class A-JFL
Regular Interest on the Class A-JFL Floating Rate Certificate Notional Amounts
subject to reduction in accordance with the Class A-JFL Swap Contract.
"CLASS A-JFL FLOATING RATE ACCOUNT" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Master Servicer
on behalf of the Trustee with respect to the Class A-JFL Certificates, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-JFL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ12, Floating Rate Account, Class A-JFL", respectively; provided,
that the Class A-JFL Floating Rate Account may be a subaccount of the
Distribution Account or the Certificate Account. The Class A-JFL Floating Rate
Account shall be an asset of the Class A-JFL Grantor Trust.
"CLASS A-JFL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-JFL Regular
Interest.
"CLASS A-JFL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-JFL Regular Interest and the Class A-JFL Swap
Contract and all payments under the Class A-JFL Regular Interest and the Class
A-JFL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-JFL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-JFL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-JFL Swap Contract
is in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the Class A-JFL Regular Interest pursuant to
the terms of the Class A-JFL Swap Contract during the related Interest Accrual
Period and (ii) amounts in respect of interest (including reimbursement of any
Prepayment Interest Shortfalls) received on the Class A-JFL Regular Interest not
required to be paid to the Swap Counterparty (which will arise due to the
netting provisions of the Class A-JFL Swap Contract or upon the termination or
expiration of the Class A-JFL Swap Contract). If the Swap Counterparty defaults
on its obligation to pay such interest to the Paying Agent, or if a Swap Default
occurs and is continuing or if the Class A-JFL Swap Contract is terminated, the
Class A-JFL Interest Distribution Amount will be an amount equal to the
Distributable Certificate Interest in respect of the Class A-JFL Regular
Interest, until such time as the Swap Default is cured, or such obligation is
paid, as the case may be, or until a replacement Class A-JFL Swap Contract is
obtained.
20
"CLASS A-JFL NET SWAP PAYMENT" has the meaning set forth in Section
8.33(g).
"CLASS A-JFL PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-JFL Regular Interest on such Distribution Date.
"CLASS A-JFL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-JFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"CLASS A-JFL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of July 1, 2007, between the Swap Counterparty and the Trust, and the
Credit Support Annex (as defined in the Class A-JFL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-JFL SWAP COUNTERPARTY COLLATERAL ACCOUNT" has the meaning
set forth in Section 8.33(f).
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for the REMIC III Regular Interests (other than the Class X
Certificates), weighted on the basis of the respective Certificate Balances of
such Classes, and (ii) the Class X Notional Amount for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"CLASS X STRIP RATE" means, for any Distribution Date, with respect
to any Class of REMIC III Regular Interests (other than the Class X
Certificates), the excess, if any, of the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date over the Pass-Through Rate for such Class of
REMIC III Regular Interests.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, which initially shall be
the Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means July 31, 2007.
"CMSA" means the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers, the
placement agent and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information
21
relating to commercial mortgage pass-through certificates and commercial
mortgage-backed bonds and the commercial mortgage loans and foreclosed
properties underlying or backing them to investors holding or owning such
certificates or bonds, and any successor to such other association or
organization. If an organization or association described in one of the
preceding sentences of this definition does not exist, "CMSA" shall be deemed to
refer to such other association or organization as shall be selected by the
Master Servicer and reasonably acceptable to the Trustee, the Paying Agent, the
Special Servicer, any Primary Servicer and the majority certificateholder of the
Controlling Class.
"CMSA ADVANCE RECOVERY REPORT" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is
one element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COLUMBIA CENTER A/B MORTGAGE LOAN" means the Columbia Center
Mortgage Loan and the Columbia Center B Note.
"COLUMBIA CENTER B NOTE" means, with respect to the Columbia Center
Mortgage Loan, the related subordinated B Note not included in the Trust, which
is subordinated in right of payment to the Columbia Center Mortgage Loan to the
extent set forth in the related Intercreditor Agreement.
"COLUMBIA CENTER MORTGAGE" means the mortgage securing the Columbia
Center A/B Mortgage Loan and any other note secured by the related Mortgaged
Property.
"COLUMBIA CENTER MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is senior to the
Columbia Center B Note and is secured by the related Mortgaged Property pursuant
to the Columbia Center Mortgage. The Columbia Center Mortgage Loan is a
"Mortgage Loan."
22
"COLUMBIA CENTER SIGNIFICANT OBLIGOR" means the Mortgagor under the
Columbia Center Mortgage Loan so long as such Mortgage meets the definition of
"significant obligor" under Regulation AB.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the excess of (A) Prepayment Interest Shortfalls incurred in
respect of the Mortgage Loans resulting from Principal Prepayments on such
Mortgage Loans (but not including any B Note, Non-Serviced Companion Mortgage
Loan or Serviced Companion Mortgage Loan) during the related Collection Period
over (B) the aggregate of the Prepayment Interest Excesses received in respect
of the Mortgage Loans serviced by the Master Servicer resulting from Principal
Prepayments on such Mortgage Loan (but not including any B Note, Non-Serviced
Companion Mortgage Loan or Serviced Companion Mortgage Loan) during the same
related Collection Period. Notwithstanding the foregoing, such Compensating
Interest shall not (i) exceed the portion of the aggregate Master Servicing Fee
accrued at a rate per annum equal to 2 basis points for the related Collection
Period calculated in respect of the Mortgage Loans including REO Mortgage Loans
(but not including any B Notes, Non-Serviced Companion Mortgage Loan or Serviced
Companion Mortgage Loan), plus any investment income earned on the amount
prepaid prior to such Distribution Date, if the Master Servicer applied the
subject Principal Prepayment in accordance with the terms of the related
Mortgage Loan documents and (ii) be required to be paid on any Prepayment
Interest Shortfalls to the extent incurred in respect of any Specially Serviced
Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan and (if applicable) its related B
Note or Serviced Companion Mortgage Loan. With respect to the Mortgaged Property
securing any Non-Serviced Mortgage Loan or Non-Serviced Companion Mortgage Loan,
only the portion of such amounts payable to the holder of the related
Non-Serviced Mortgage Loan shall be included in Condemnation Proceeds, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts payable to the holder of the related Serviced
Pari Passu Mortgage or A Note, as applicable, shall be included in Condemnation
Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular Certificates, Class A-2FL Certificates, Class A-MFL Certificates or
Class A-JFL Certificates outstanding at any time of determination; provided,
that, if the Aggregate Certificate Balance of such Class is less than 25% of the
initial Certificate Balance of such Class as of the Closing Date, the
Controlling Class shall be the next most subordinate Class of REMIC Regular
Certificates, Class A-2FL Certificates, Class A-MFL Certificates or Class A-JFL
Certificates outstanding. As of the Closing Date, the Controlling Class will be
the Class S Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the Securities Act.
23
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Global Securities and Trust Services--Xxxxxx
Xxxxxxx Capital I Inc., Series 2007-HQ12, and the office of the Certificate
Registrar is presently located for certificate transfer purposes at Xxxxx Fargo
Center, Sixth Street and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) -- Xxxxxx
Xxxxxxx Capital I Inc., Series 2007-HQ12, and for all other purposes at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS) -- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12, or at such other
address as the Trustee or Certificate Registrar may designate from time to time
by notice to the Certificateholders, the Depositor, the Master Servicer, the
Paying Agent and the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates (or in
the case of the Class A-2FL Certificates, the Class A-MFL Certificates or the
Class A-JFL Certificates, the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest or the Class A-JFL Regular Interest, respectively) as set forth
in the Preliminary Statement with respect to any Corresponding REMIC II Regular
Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates (or in the case of the Class A-2FL Certificates, the
Class A-MFL Certificates or the Class A-JFL Certificates, the Class A-2FL
Regular Interest, the Class A-MFL Regular Interest or the Class A-JFL Regular
Interest, respectively).
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and the Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"CUSTODIAN MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Custodian Mortgage File" is used to refer to documents actually received by the
Trustee or a Custodian on its behalf, such terms shall not be deemed to include
such documents required to be included therein unless they are actually so
received.
24
"CUSTOMER" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on July 1, 2007. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on July 1, 2007, and
Scheduled Payments due in July 2007 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on July 1, 2007,
not the actual day on which such Scheduled Payments were due.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T, whether or not the Mortgage Loan has an interest only period that has
not expired as of the Cut-Off Date.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced
Companion Mortgage Loan that is in default under the terms of the applicable
Mortgage Loan documentation and for which any applicable grace period has
expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the Qualifying Government Securities (as defined in Section 8.3(h)) required to
be pledged in lieu of prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan, Serviced Companion
Mortgage Loan or B Note which requires or permits the related Mortgagor (or
permits the holder of such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note to require the related Mortgagor) to pledge Defeasance Collateral to such
holder in lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section
2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan
(other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage
Loan or any Loan Pair, a valuation by a court of competent jurisdiction of the
Mortgaged Property (or, with respect to a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the pro rata portion of the valuation
allocable to such Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage
Loan, as applicable) relating to such Mortgage Loan, A/B Mortgage Loan or Loan
Pair in an amount less than the then outstanding indebtedness under such
Mortgage Loan, A/B Mortgage Loan or Loan Pair, which valuation results from a
proceeding initiated under the United States Bankruptcy Code, as amended from
time to time, and that reduces the amount the Mortgagor is required to pay under
such Mortgage Loan, A/B Mortgage Loan or Loan Pair.
25
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DEPTFORD MALL B NOTE" means, with respect to the Deptford Mall Pari
Passu Loan, the two (2) related subordinated B Notes not included in the Trust,
which are subordinated in right of payment to the Deptford Mall Pari Passu Loan
and the Deptford Mall Companion Loan and on a pari passu basis with each other
to the extent set forth in the related Intercreditor Agreement.
"DEPTFORD MALL COMPANION LOAN" means the note secured by the
Deptford Mall Pari Passu Mortgage on a pari passu basis with the Deptford Mall
Pari Passu Loan that is included in a securitization known as the Xxxxxx Xxxxxxx
Capital I Trust 2007-HQ11. The Deptford Mall Companion Loan is not a "Mortgage
Loan."
"DEPTFORD MALL PARI PASSU LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 8 on the Mortgage Loan Schedule, which is secured on a pari
passu basis with the Deptford Mall Companion Loan pursuant to the Deptford Mall
Pari Passu Mortgage. The Deptford Mall Pari Passu Loan is a "Mortgage Loan."
"DEPTFORD MALL PARI PASSU MORTGAGE" means the mortgage securing the
Deptford Mall Pari Passu Loan, the Deptford Mall Companion Loan and the Deptford
Mall B Note.
26
"DETERMINATION DATE" means, with respect to any Distribution Date,
the 8th day of the month in which such Distribution Date occurs or, if such day
is not a Business Day, the next succeeding Business Day, commencing August 8,
2007.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property 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, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless a different term methodology or source is otherwise set forth in
the Mortgage Loan documents, is the yield calculated by the linear interpolation
of the yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity date (or the
Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class of Certificates (other than the Class A-2FL
Certificates, the Class A-MFL Certificates, the Class A-JFL Certificates, the
Residual Certificates and the Class T Certificates)
27
or Interests (including the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest, but not including the
Residual Certificates), the sum of (A) Accrued Certificate Interest in respect
of such Class or Classes or Interest, reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest Shortfalls for such Class or Classes of
Certificates or Interests, allocated on such Distribution Date to such Class or
Classes or Interest pursuant to Section 6.7, and (ii) Realized Losses allocated
on such Distribution Date to reduce the Distributable Certificate Interest
payable to such Class or Classes or Interest pursuant to Section 6.6, plus (B)
the Unpaid Interest, plus (C) if the Aggregate Certificate Balance is reduced
because of a diversion of principal in accordance with Section 5.2(a)(II)(iv),
and there is a subsequent recovery of amounts as set forth in Section 6.6(c)(i),
then interest at the applicable Pass-Through Rate that would have accrued and
been distributable with respect to the amount that the Aggregate Certificate
Balance was so reduced, which interest shall accrue from the date that the
related Realized Loss is allocated through the end of the Interest Accrual
Period related to the Distribution Date on which such amounts are subsequently
recovered.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means, with respect to any Determination Date,
the 4th Business Day after the related Determination Date, commencing August 14,
2007.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis
and Retrieval system.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P and "F-1" by Fitch, if the deposits are
to be held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "AA-" by S&P and at least "AA-" by Fitch (or "A-"
by S&P and Fitch so long as the short-term unsecured debt obligations are rated
at least "A-1" by S&P and not less than "F-1" by Fitch), if the deposits are to
be held in the account more than 30 days or (ii) a segregated trust account or
accounts maintained in the trust department of the Trustee, the Paying Agent or
other financial institution having a combined capital and surplus of at least
$50,000,000 and subject to regulations regarding fiduciary funds on deposit
similar to Title 12 of the Code of Federal Regulations Section 9.10(b), or (iii)
an account or accounts of a depository institution acceptable to each Rating
Agency, as evidenced by Rating Agency Confirmation with respect to the use of
any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank, National Association, a wholly-owned subsidiary of Xxxxx Fargo & Co.,
provided that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "A-1" in
the case of S&P, and "F-1" in the case of Fitch, if the deposits are to be held
in the account for 30 days or less, or (B) long-term unsecured debt obligations
are rated at least "AA-" (or "A" (without regard to any plus or minus), if the
short-
28
term unsecured debt obligations are rated at least "A-1") in the case of S&P and
at least "A+" in the case of Fitch, if the deposits are to be held in the
account for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United States
of America, FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the
United States of America; provided that any obligation of FNMA or FHLMC, other
than an unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured
certificates of deposit of, money market deposit accounts of, or bankers'
acceptances issued by, any depository institution or trust company (including
the Trustee, the Master Servicer, the Special Servicer, the Paying Agent or any
Affiliate of the Master Servicer, the Special Servicer, the Paying Agent or the
Trustee, acting in its commercial capacity) incorporated or organized under the
laws of the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so long as
the commercial paper or other short-term debt obligations of such depository
institution or trust company are rated "F-1" by Fitch and "A-1" by S&P or the
long-term unsecured debt obligations of such depository institution or trust
company have been assigned a rating by each Rating Agency at least equal "AA" by
Fitch and "AA-" by S&P or its equivalent or, in each case, if not rated by a
Rating Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as set
forth in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity set forth above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or
stripped coupons) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or any
state thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance thereof) rated "F-1" by Fitch and "A-1" by S&P (or for which Rating
Agency Confirmation is obtained with respect to such ratings);
29
(vi) units of investment funds (including money market
funds) that are rated in the highest long-term category by Fitch, or if not
rated by Fitch, then Fitch has issued a Rating Agency Confirmation, and "AAAm"
by S&P;
(vii) guaranteed reinvestment agreements maturing within
365 days or less issued by any bank, insurance company or other corporation
whose long-term unsecured debt rating is not less than "AA" (or its equivalent)
by Fitch and "AA-" by S&P (if rated by Fitch or, if not rated by Fitch, by S&P
and another nationally recognized statistical rating organization), or for which
Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds (including those managed or
advised by the Paying Agent or its affiliates) that maintain a constant asset
value and that are rated "AAA" (or its equivalent rating) by Fitch (if so rated
by Fitch) and "AAAm" or "AAAm-G" (or its equivalent rating) by S&P, and any
other demand, money-market or time deposit, or any other obligation, security or
investment, with respect to which Rating Agency Confirmation has been obtained;
and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time
30
in respect of such Mortgage Loan, Mortgaged Property or REO Property, as the
case may be, for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan if such ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the related Mortgage Loan documents)
over (ii) interest accrued at the rate of interest applicable to such Mortgage
Loan before such Anticipated Repayment Date. Excess Interest on an ARD Loan is
an asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"EXCESS INTEREST GRANTOR TRUST" means that portion of the Trust that
evidences beneficial ownership of the Excess Interest and the Excess Interest
Sub-account, as set forth in Section 12.5(a) hereof.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed
to be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool.
31
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note, or, in
the case of an REO Property related to a Loan Pair, a Principal Prepayment in
full had been made with respect to both the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds were
received plus accrued and unpaid interest with respect to such Mortgage Loan and
any and all expenses (including Additional Trust Expenses and Unliquidated
Advances) with respect to such Mortgage Loan. In the case of a Serviced Pari
Passu Mortgage Loan, Excess Liquidation Proceeds means only the pro rata share
of such proceeds that are allocated to the Trust. In the case of an A/B Mortgage
Loan, Excess Liquidation Proceeds means only the pro rata share of such proceeds
that are allocated to the Trust.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans or
the Serviced Companion Mortgage Loans for which an "excess servicing fee rate"
is designated on the Mortgage Loan Schedule, the monthly fee payable to the
Master Servicer or its successors and assigns as holder of excess servicing
rights, which fee shall accrue on the Scheduled Principal Balance of each such
Mortgage Loan immediately prior to the Due Date occurring in each month at the
per annum rate (determined in the same manner as the applicable Mortgage Rate
for such Mortgage Loan is determined for such month) specified on the Mortgage
Loan Schedule (the "Excess Servicing Fee Rate"). The holder of excess servicing
rights is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans or Serviced Companion Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation of asset pool
investment trusts granted by the United States Department of Labor to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
32
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special Servicer in consultation with the
Operating Adviser and the Master Servicer (including a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that became an REO Property), in each case,
in its good faith discretion, consistent with the Servicing Standard, that all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase
Proceeds and other payments or recoveries that the Special Servicer expects to
be finally recoverable on such Mortgage Loan, Serviced Companion Mortgage Loan
or B Note, without regard to any obligation of the Master Servicer, the Special
Servicer or the Trustee, as the case may be, to make payments from its own funds
pursuant to Article IV hereof, have been recovered. The Special Servicer shall
be required to provide the Master Servicer with prompt written notice of any
Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan upon making such determination. The Master Servicer shall notify the
Trustee and the Paying Agent of such determination and the Paying Agent shall
deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FINANCIAL MARKET PUBLISHERS" means Xxxxx, LLC, Intex Solutions,
Inc. and Bloomberg L.P., or any successor entities thereof.
"FISCAL AGENT" means any "fiscal agent" appointed pursuant to
Section 7.19.
"FITCH" means Fitch, Inc. or its successor in interest.
-----
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FORM 8-K DISCLOSURE INFORMATION" has the meaning set forth in
Section 13.7.
"FREE WRITING PROSPECTUS" has the meaning set forth in the
Preliminary Statement hereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"GRANTOR TRUST POOL" means each of the Class A-2FL Grantor Trust,
the Class A-MFL Grantor Trust, the Class A-JFL Grantor Trust and the Excess
Interest Grantor Trust.
"HOLDER" means the Person in whose name a Certificate is registered
on the Certificate Register.
33
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in such Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC Pool is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person (including the Master Servicer
or the Special Servicer) upon receipt by the Trustee of an Opinion of Counsel,
which shall be at the expense of the Person delivering such opinion to the
Trustee, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INITIAL REVIEW PERIOD" has the meaning set forth in Section 9.4(d).
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
34
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the Securities Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage
Loan, the related intercreditor agreement by and between the holder of the
related A Note(s) and the holder of the related B Note relating to the relative
rights of such holders of the respective A Note(s) and B Note, as the same may
be further amended from time to time in accordance with the terms thereof.
"INTEREST" means a REMIC I Interest, a REMIC II Interest, the Class
A-2FL Regular Interest, the Class A-MFL Regular Interest or the Class A-JFL
Regular Interest, as applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates (other than the Class A-2FL Certificates,
the Class A-MFL Certificates and the Class A-JFL Certificates) and Interests
(including the Class A-2FL Regular Interest, the Class A-MFL Regular Interest
and the Class A-JFL Regular Interest, but not including the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs and with
respect to the Class A-2FL Certificates, the Class A-MFL Certificates and the
Class A-JFL Certificates, subject to Section 6.12, the period from (and
including) the prior Distribution Date (or the Closing Date, in the case of the
first such period) and ending on (and including) the day before the current
Distribution Date..
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section
5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
35
"INTEREST RESET DATE" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"INTERESTED PERSON" means, as of any date of determination, the
Master Servicer, the Special Servicer, the Depositor, the holder of any related
Junior Indebtedness (with respect to any particular Mortgage Loan), a holder of
50% or more of the Controlling Class, the Operating Adviser, any Independent
Contractor engaged by the Master Servicer or the Special Servicer pursuant to
this Agreement, or any Person actually known to a Responsible Officer of the
Trustee to be an Affiliate of any of them.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"LASALLE" means LaSalle Bank National Association.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, all amounts received during any
Collection Period, whether as late payments or as Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds or otherwise, that
represent payments or collections of Scheduled Payments due but delinquent for a
previous Collection Period and not previously recovered.
"LATE FEE" means a fee payable to the Master Servicer or the Special
Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan, Serviced Companion Mortgage
Loan or the related B Note in connection with a late payment made by such
Mortgagor. References in this Agreement to Late Fees and default interest in
respect of any Loan Pair or in respect of any Non-Serviced Mortgage Loan and its
related Non-Serviced Companion Mortgage Loan shall mean only the portion thereof
that is received by the Trust in accordance with the applicable Loan Pair
Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement.
Notwithstanding anything to the contrary in this Agreement, Late Fees relating,
and allocated, to any B Note in accordance with the related Intercreditor
Agreement (after being first applied to Advance Interest) shall be payable to
the Holder of the related B Note in accordance with the related Intercreditor
Agreement.
"LIBOR" means, with respect to each Interest Accrual Period, the per
annum 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
Interest Reset Date. If such rate does not appear on said Reuters Screen LIBOR01
Page, LIBOR shall be the arithmetic mean of the offered quotations obtained by
the Swap Counterparty from the principal London office of four major banks in
the London interbank market selected by the Swap Counterparty in its sole
discretion (each, a "Reference Bank") for rates at which deposits in U.S.
dollars are offered to prime banks in the London interbank market for a period
of one month in an amount that is representative for a single transaction in the
relevant market at the relevant time as of approximately 11:00 a.m., London
time, on the Interest Reset Date. If fewer than two Reference Banks provide the
Swap Counterparty with such quotations, LIBOR shall be the rate per annum which
the Swap Counterparty determines to be the arithmetic mean of the rates quoted
by major banks in New York City, New York selected by the Swap Counterparty at
approximately 11:00
36
a.m. New York City time on the first day of the Interest Accrual Period for
loans in U.S. dollars to leading European banks for a period of one month in an
amount that is representative for a single transaction in the relevant market at
the relevant time. LIBOR for the initial Interest Accrual Period is 5.32%.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the Master
Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and
(y) the Liquidation Proceeds received in connection with a final disposition of
a Specially Serviced Mortgage Loan or related REO Property or portion thereof
and any Condemnation Proceeds and Insurance Proceeds received by the Trust (net
of any expenses incurred by the Special Servicer on behalf of the Trust in
connection with the collection of such Condemnation Proceeds and Insurance
Proceeds) other than Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds received in connection with any Non-Serviced Mortgage Loan; provided,
however, that (A) in the case of a final disposition consisting of the
repurchase of a Mortgage Loan or REO Property by a Seller pursuant to Section
2.3, such fee will only be paid by such Seller and due to the Special Servicer
if repurchased after the date that is 90 days (or 180 days, if the Seller is
diligently attempting to cure or correct the related Material Document Defect or
Material Breach, as the case may be, in accordance with the terms and conditions
of Section 2.3(a) hereof) or more after the Seller receives notice of the breach
or defect causing the repurchase and (B) in the case of a repurchase of a
Mortgage Loan by a related B Note holder or mezzanine lender, such fee will only
be due to the Special Servicer if repurchased 60 days after the Master Servicer,
the Special Servicer or the Trustee receives notice of the default causing the
repurchase. For the avoidance of doubt, a Liquidation Fee will be payable in
connection with a repurchase of (i) an A Note by the holder of the related B
Note or (ii) a Mortgage Loan by the holder of the related mezzanine loan, unless
otherwise specifically set forth in the related Intercreditor Agreement.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation
of a Specially Serviced Mortgage Loan or related REO Property (net of
Liquidation Expenses). With respect to the mortgaged property or properties
securing any Non-Serviced Mortgage Loan or Non-Serviced Companion Mortgage Loan,
only the portion of such amounts payable to the holder of the related
Non-Serviced Mortgage Loan will be included in Liquidation Proceeds, and with
respect to the mortgaged property or properties securing any Loan Pair or A/B
Mortgage Loan, only an allocable portion of such Liquidation Proceeds will be
distributable to the Certificateholders.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance (as
37
increased by any Unliquidated Advance with respect to such Mortgage Loan) of the
Mortgage Loan (or such deemed Principal Balance, in the case of an REO Mortgage
Loan) as of the date of the Cash Liquidation or REO Disposition (adjusted in
accordance with Section 6.6(c)(i)), plus (B) unpaid interest and interest
accrued thereon at the applicable Mortgage Rate (including interest accrued and
unpaid on the portion of the Principal Balance added in accordance with Section
6.6(c)(i), which interest shall accrue from the date of the reduction in the
Principal Balance resulting from the allocation of a Realized Loss incurred
pursuant to Section 6.6(b)(i)), plus (C) any expenses (including Additional
Trust Expenses but not including Special Servicing Fees) incurred in connection
with such Mortgage Loan that have been paid or are payable or reimbursable to
any Person, other than amounts included in the definition of Liquidation
Expenses and amounts previously treated as Expense Losses attributable to
principal (and interest thereon) minus the sum of (i) REO Income applied as
recoveries of principal or interest on the related Mortgage Loan or REO
Property, and (ii) Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, Late Collections and all other amounts recovered from the related
Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred and which are not required under any
Intercreditor Agreement, any Loan Pair Intercreditor Agreement or Non-Serviced
Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any
holder of a B Note, a Serviced Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income and Liquidation Proceeds shall be applied
first to reimburse the Master Servicer, the Special Servicer and the Trustee, as
applicable, to the extent that Section 5.2(a)(I) otherwise entitles such party
to reimbursement, for any Nonrecoverable Advance with respect to the related
Mortgage Loan, and then for all Workout-Delayed Reimbursement Amounts with
respect to such related Mortgage Loan (but not any such amount that has become
Unliquidated Advances), and any remaining REO Income and Liquidation Proceeds
and any Condemnation Proceeds and Insurance Proceeds shall be applied first
against any Additional Trust Expenses (to the extent not included in the
definition of Liquidation Expenses) for such Mortgage Loan, next as a recovery
of any Nonrecoverable Advance (and interest thereon) with respect to such
Mortgage Loan previously paid from principal collections pursuant to Section
5.2(a)(II), next to any Unliquidated Advances with respect to such Mortgage
Loan, next to the unpaid interest on the Mortgage Loan, calculated as set forth
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as set forth in clause (A) above.
"LOAN GROUP" means either Loan Group 1 or Loan Group 2, as the case
may be.
"LOAN GROUP PRINCIPAL DISTRIBUTION AMOUNT" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"LOAN GROUP 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"LOAN GROUP 1 MORTGAGE LOAN" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"LOAN GROUP 1 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
38
"LOAN GROUP 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"LOAN GROUP 2 MORTGAGE LOAN" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"LOAN GROUP 2 PRINCIPAL DISTRIBUTION AMOUNT" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"LOAN PAIR" means a Serviced Pari Passu Mortgage Loan and the
related Serviced Companion Mortgage Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair,
the allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or the applicable Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"LOSSES" has the meaning set forth in Section 12.4.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section
7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association and
its permitted successors or assigns.
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in Section
8.25(a).
39
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Paying Agent containing such information regarding the Mortgage Loans as
will permit the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan, Serviced Companion Mortgage Loan and B Note (including REO
Mortgage Loans and Defeasance Loans) but not as to any Non-Serviced Mortgage
Loan (as to which there is no Master Servicing Fee payable to the Master
Servicer under this Trust), an amount equal to the Master Servicing Fee Rate
applicable to such month (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note immediately before the Due Date occurring in such month, subject
to reduction in respect of Compensating Interest, as set forth in Section
8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage
Loan, Serviced Companion Mortgage Loan and B Note (including any Mortgage Loan
relating to an REO Property), the rate per annum specified as such on the
Mortgage Loan Schedule. Unless otherwise set forth on the Mortgage Loan
Schedule, with respect to a Non-Serviced Mortgage Loan, no Master Servicing Fee
Rate is charged by the Master Servicer, but the Pari Passu Loan Servicing Fee
Rate is charged by the applicable Non-Serviced Mortgage Loan Master Servicer
pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section
2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as of any date of determination, the date on
which the last payment of principal is due and payable thereunder, after taking
into account all Principal Prepayments received and any Deficient Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note occurring prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note or (ii) any grace
period permitted by such Mortgage Loan, B Note or Serviced Companion Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MODIFICATION FEE" means a fee, if any, collected in connection with
a modification of any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note.
40
"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the date of such Distribution Date, and of the Record
Date, Interest Accrual Period, and Determination Date for such Distribution
Date; (ii) the Available Distribution Amount for the Distribution Date, and any
other cash flows received on the Mortgage Loans and applied to pay fees and
expenses (including the components of the Available Distribution Amount or such
other cash flows); (iii) the aggregate amount of servicing fees, Special
Servicing Fees, other special servicing compensation and Trustee Fees paid to
the Master Servicer, any Primary Servicer, the Special Servicer, the holders of
the rights to Excess Servicing Fees, the Trustee and the Paying Agent with
respect to the Mortgage Loans; (iv) the amount of other fees and expenses
accrued and paid from the Trust Fund, including without limitation Advance
reimbursement and interest on Advances, and specifying the purpose of such fees
or expenses and the party receiving payment of those amounts, if applicable; (v)
the amount, if any, of such distributions to the Holders of each Class of
Principal Balance Certificates applied to reduce the respective Certificate
Balances thereof; (vi) the amount of such distribution to holders of each Class
of Certificates allocable to (A) interest accrued (including Excess Interest) at
the respective Pass-Through Rates, less any Net Aggregate Prepayment Interest
Shortfalls and (B) Prepayment Premiums (including Prepayment Premiums
distributed in respect of the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest and paid to the Swap
Counterparty); (vii) the amount of any shortfall in principal distributions and
any shortfall in interest distributions to each applicable Class of
Certificates; (viii) the amount of excess cash flow, if any distributed to the
holder of the Residual Certificates; (ix) the Aggregate Certificate Balance or
Notional Amount of each Class of Certificates before and after giving effect to
the distribution made on such Distribution Date; (x) the Pass-Through Rate
applicable to each Class of Certificates for such Distribution Date; (xi) the
Weighted Average Mortgage Rate (and interest rates by distributional groups or
ranges) of the Mortgage Loans as of the related Determination Date; (xii) the
number of outstanding Mortgage Loans and the aggregate Principal Balance and
Scheduled Principal Balance of the Mortgage Loans and the weighted average
remaining term at the close of business on such Determination Date, with respect
to the Mortgage Loans or with respect to each Loan Group; (xiii) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which
41
bankruptcy proceedings have been commenced; (xiv) the aggregate amount and
general purpose of Servicing Advances and P&I Advances outstanding, separately
stated, that have been made by the Master Servicer, the Special Servicer and the
Trustee with respect to the Mortgage Loans and the aggregate amount and general
purpose of Servicing Advances and P&I Advances made by the applicable
Non-Serviced Mortgage Loan Master Servicer in respect of the Non-Serviced
Mortgage Loans; (xv) the number and related Principal Balances of any Mortgage
Loans modified, extended or waived on a loan-by-loan basis since the previous
Determination Date (including a description of any modifications, extensions or
waivers to mortgage loan terms, fees, penalties or payments during the
distribution period as provided to the Paying Agent); (xvi) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (xvii) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the Special Servicer that it has recovered all
payments which it expects to be finally recoverable and the amount of the
proceeds of such sale deposited into the Certificate Account, and (B) the
aggregate amount of other revenues collected by the Special Servicer with
respect to each REO Property during the related Collection Period and credited
to the Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (xviii) the aggregate amount of
Principal Prepayments made during the related Collection Period with respect to
the Mortgage Loans and with respect to each Loan Group; (xix) the amount of
Unpaid Interest and Realized Losses, if any, incurred with respect to the
Mortgage Loans, including a breakout by type of such Realized Losses with
respect to the Mortgage Loans and with respect to each Loan Group; (xx) any
Material Breaches of Mortgage Loan representations and warranties of which the
Trustee, the Master Servicer or the Special Servicer has received written
notice; and (xxi) the amount of any Appraisal Reductions effected during the
related Collection Period on a loan-by-loan basis and the total Appraisal
Reductions in effect as of such Distribution Date (and in the case of the
Non-Serviced Mortgage Loans, the amount of any appraisal reductions effected
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement);
(xxii) the amounts received in respect of the Class A-2FL Swap Contract, the
Class A-MFL Swap Contract and the Class A-JFL Swap Contract or the amounts paid
in respect of any Swap Contract and, if any of such amounts are less than the
full amount required to be paid under either Swap Contract, the amount of the
shortfall; (xxiii) the 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 Class A-2FL Swap Contract, the Class A-MFL
Swap Contract and the Class A-JFL Swap Contract (including, if applicable, the
notice required by Section 6.12); (xxiv) the amount of any (1) payment by the
Swap Counterparty as a termination payment, (2) payment to any successor
interest rate swap counterparty to acquire a replacement interest rate swap
agreement, and (3) collateral posted in connection with any Rating Agency
Trigger Event; and (xxv) the amount of and identification of any payments on the
Class A-2FL Certificates, the Class A-MFL Certificates or the Class A-JFL
Certificates in addition to the amount of principal and interest due thereon,
such as any payment received in connection with the related Swap Contract or any
payment of a Prepayment Premium after the termination of the related Swap
Contract that is required to be distributed on the Class A-2FL Certificates, the
Class A-MFL Certificates or the Class A-JFL Certificates pursuant to the terms
of this Agreement. In the case of information furnished pursuant to subclauses
(v), (vi) and (ix) above, the amounts shall be expressed in the aggregate and as
a dollar amount per $1,000 of original principal amount of the Certificates for
all Certificates of each applicable Class.
42
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost note
affidavit with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Custodian a true and
correct copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon, or if any such original modification,
consolidation or extension agreements have been delivered to the appropriate
recording office for recordation and either have not yet been returned on or
prior to the 90th day following the Closing Date with evidence of recordation
thereon or have been lost after recordation, true copies of such modifications,
consolidations or extensions certified by the Seller together with (A) in the
case of a delay caused by the public recording office, an Officer's Certificate
of the Seller stating that such original modification, consolidation or
extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (B) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for
43
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12"; provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no Assignment of Mortgage in favor of the Trustee
will be required to be submitted for recording or filing and instead, the Seller
shall take all actions as are necessary to cause the Trustee to be shown as, the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS
and shall deliver to the Special Servicer, the Trustee and the Custodian
evidence confirming that the Trustee is shown as the owner on the record of
MERS;
(v) originals of all intervening assignments of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by the Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by the Seller, a copy thereof certified by the Seller or, if
any original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (A) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (B) in the case of an original intervening assignment of Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such assignment is recorded that such copy is a true and
complete copy of the original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the Seller to be a true
and complete copy of the original Assignment of Leases submitted for recording,
together with (A) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
Seller to be a true and complete copy of the original assignment submitted for
recording, and (B) an original assignment of such Assignment of Leases, in
recordable form, signed by the holder of record in favor of "LaSalle Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ12," which assignment may be
effected in the related Assignment of Mortgage; provided, if the related
Assignment of Leases has been recorded in the name of MERS or its designee, no
assignment of Assignment of Leases in favor of the Trustee will be required to
be recorded or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trustee to be shown as, the owner of the related
Assignment of Leases on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS and
shall deliver to the Special Servicer, the Custodian and the Trustee evidence
confirming that the Trustee is shown as the owner on the record of MERS;
44
(vii) the original or a copy of each guaranty, if any,
constituting additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Custodian executed
and delivered in connection with the Mortgage Loan; provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trustee to be
shown as the owner of the related UCC financing statements on the record of MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS and shall deliver to the Special Servicer and the
Trustee and the Custodian evidence confirming that the Trustee is shown as the
owner on the record of MERS;
(x) copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note), if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned to the Trustee and delivered to the Custodian on behalf of the Trust
with a copy to be held by the applicable Primary Servicer (or the Master
Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, this Agreement and the
applicable Primary Servicing Agreement or (B) the original of each letter of
credit, if any, constituting additional collateral for such Mortgage Loan, which
shall be held by the applicable Primary Servicer (or the Master Servicer) on
behalf of the Trustee, with a copy to be held by the Custodian, and applied,
drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement (it being understood that the Seller has agreed (a) that the
proceeds of such letter of credit belong to the Trust, (b) to notify, on or
before the Closing Date, the bank issuing the letter of credit that the letter
of credit and the proceeds thereof belong to the Trust, and to use reasonable
efforts to obtain within 30 days (but in any event to obtain within 90 days)
following the Closing Date, an acknowledgement thereof by the bank (with a copy
of such acknowledgement to be sent to the Custodian) or a reissued letter of
credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees
or other expenses accruing from the failure of the Seller to assign all rights
in and to the letter of credit hereunder including the right and power to draw
on the letter of credit). In the case of clause (B) above, any letter of credit
held by the
45
applicable Primary Servicer (or the Master Servicer) acknowledges that any
letter of credit held by it shall be held in its capacity as agent of the Trust,
and if the applicable Primary Servicer (or Master Servicer) sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) will assign the applicable letter of credit to the Trust or at the
direction of the Special Servicer (with respect to any Specially Serviced
Mortgage Loan) to such party as the Special Servicer may instruct, in each case,
at the expense of the applicable Primary Servicer (or Master Servicer). The
applicable Primary Servicer (or Master Servicer) shall indemnify the Trust for
any loss caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of any environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged
Properties operated as hotels and for all Mortgaged Properties securing Mortgage
Loans with a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) the original or a copy of any Environmental Insurance
Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Notes (and all
intervening endorsements) respectively evidencing such Non-Serviced Mortgage
Loan with respect to which the originals shall be required), including a copy of
such Non-Serviced Mortgage Loan Mortgage. To the extent that the custodian with
respect to any Non-Serviced Mortgage Loan is also the Custodian under this
Agreement, the Custodian shall not be required to maintain a separate set of
such documents specified in this definition of "Mortgage File" (other than the
Mortgage Note (and all intervening endorsements) evidencing the Mortgage Loan,
with respect to which the originals shall be required); provided that, the
Custodian shall be obligated to provide any Person entitled to request copies of
such documents pursuant to the terms of this Agreements with any such copies
upon request as if the Custodian were maintaining a complete Mortgage File for
such Non-Serviced Mortgage Loan.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I.
46
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage
Loan Purchase Agreement between MSMCH and the Depositor dated as of July 26,
2007 with respect to the MSMCH Loans, a form of which is attached hereto as
Exhibit K-1.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMCH Loan, as
such Schedule may be amended from time to time pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, Serviced Companion
Mortgage Loan or B Note, the per annum rate at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion Mortgage
Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMCH" has the meaning set forth in the Preliminary Statement
hereto.
"MSMCH LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"MSCI 2007-HQ11 DEPOSITOR" means the "depositor" under the MSCI
2007-HQ11 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxxx Xxxxxxx Capital I Inc.
"MSCI 2007-HQ11 MASTER SERVICER" means the "master servicer" under
the MSCI 2007-HQ11 Pooling and Servicing Agreement, which as of the Closing Date
is Capmark Finance Inc.
"MSCI 2007-HQ11 POOLING AND SERVICING AGREEMENT" means the pooling
and servicing agreement, dated as of February 1, 2007, by and between the MSCI
2007-HQ11 Depositor, the MSCI 2007-HQ11 Master Servicer, the MSCI 2007-HQ11
Special Servicer, the MSCI 2007-HQ11 Trustee and LaSalle Bank National
Association, as paying agent and certificate registrar, pursuant to which the
MSCI 2007-HQ11 Trust issued its Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11.
"MSCI 2007-HQ11 SPECIAL SERVICER" means the "special servicer" under
the MSCI 2007-HQ11 Pooling and Servicing Agreement, which as of the Closing Date
is X.X. Xxxxxx Company, Inc.
47
"MSCI 2007-HQ11 TRUST" means the trust established pursuant to the
MSCI 2007-HQ11 Pooling and Servicing Agreement.
"MSCI 2007-HQ11 TRUSTEE" means the "trustee" under the MSCI
2007-HQ11 Pooling and Servicing Agreement, which as of the Closing Date is Xxxxx
Fargo Bank, National Association.
"MSCI 2007-IQ14 DEPOSITOR" means the "depositor" under the MSCI
2007-IQ14 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxxx Xxxxxxx Capital I Inc.
"MSCI 2007-IQ14 MASTER SERVICER" means the "master servicer" under
the MSCI 2007-IQ14 Pooling and Servicing Agreement with respect to the Beacon
Seattle & DC Portfolio Companion Loan A-1, which as of the Closing Date is Xxxxx
Fargo Bank, National Association.
"MSCI 2007-IQ14 POOLING AND SERVICING AGREEMENT" means the pooling
and servicing agreement, dated as of May 1, 2007, by and between the MSCI
2007-IQ14 Depositor, Capmark Finance Inc., as general master servicer with
respect to the mortgage loans sold to the MSCI 2007-HQ11 Trust by LaSalle Bank
National Association, Royal Bank of Canada or Principal Commercial Funding II,
LLC, Xxxxx Fargo Bank, National Association, as master servicer with respect to
the mortgage loans sold to the MSCI 2007-HQ11 Trust by Xxxxx Fargo Bank,
National Association, MSMCH or National City Bank, and Prudential Asset
Resources, Inc., as master servicer with respect to the mortgage loans sold to
the MSCI 2007-HQ11 Trust by Prudential Mortgage Capital Funding, LLC, the MSCI
2007-IQ14 Special Servicer and the MSCI 2007-IQ14 Trustee, pursuant to which the
MSCI 2007-IQ14 Trust issued its Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ14.
"MSCI 2007-IQ14 SPECIAL SERVICER" means the "special servicer" under
the MSCI 2007-IQ14 Pooling and Servicing Agreement, which as of the Closing Date
is Centerline Servicing Inc.
"MSCI 2007-IQ14 TRUST" means the trust established pursuant to the
MSCI 2007-IQ14 Pooling and Servicing Agreement.
"MSCI 2007-IQ14 TRUSTEE" means the "trustee" under the MSCI
2007-IQ14 Pooling and Servicing Agreement, which as of the Closing Date is The
Bank of New York Trust Company, National Association.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means, for the related
Distribution Date, the excess of all Prepayment Interest Shortfalls incurred in
respect of all (or, where specified, a portion) of the Mortgage Loans (including
Specially Serviced Mortgage Loans) during any Collection Period over the
Compensating Interest to be paid by the Master Servicer (or any Primary Servicer
or Sub Servicer, if applicable according to the related Primary Servicing
Agreement or Sub Servicing Agreement) on such Distribution Date.
"NEW LEASE" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
48
"NMWHFIT" means 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.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and
(ii) will not cause the Class A-2FL Grantor Trust, the Class A-MFL Grantor
Trust, the Class A-JFL Grantor Trust or the Excess Interest Grantor Trust to
fail to qualify as a grantor trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of the Rating Agencies.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued thereon at the
Advance Rate) and (ii) the portion of any Advance (including interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including interest
thereon) previously made (and, in the case of an Unliquidated Advance, not
previously reimbursed to the Trust) or proposed to be made by the Master
Servicer, the Special Servicer or the Trustee, that, in its respective sole
discretion, exercised in good faith and, with respect to the Master Servicer and
the Special Servicer, taking into account the Servicing Standard, will not be
or, in the case of a current delinquency, would not be, ultimately recoverable,
from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan or Serviced Companion Mortgage Loan (and taking into consideration any
Crossed Mortgage Loans) (in the case of Servicing Advances) or B Note (in the
case of Servicing Advances) or REO Property (in the case of P&I Advances and
Servicing Advances), as evidenced by an Officer's Certificate delivered pursuant
to Section 4.4. Such Officer's Certificate shall be delivered to the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor (if the
Trustee is delivering such Officer's Certificate) and (in either case) to the
Special Servicer and the Paying Agent in the time periods as specified in
Section 4.4 and shall include the information and reports set forth in Section
4.4. Absent bad faith, the Master Servicer's determination as to the
recoverability of any Advance shall be conclusive and binding on the
Certificateholders and, in the case of any B Note or Serviced Companion Mortgage
Loan, the holder of such B Note or Serviced Companion Mortgage Loan, as
applicable, and may, in all cases, be relied on by the Trustee; provided,
however, that the Special Servicer may, at its option, make a determination in
accordance with the Servicing Standard that any P&I Advance or Servicing
Advance, if made, would be a Nonrecoverable Advance and shall deliver to the
Master Servicer and the Trustee notice of such determination. Any such
determination shall be conclusive and binding on the Certificateholders, the
Master Servicer and the Trustee. Pursuant to Section 4.1A of this Agreement, any
determination as to the recoverability of any Advance made with respect to any
Non-Serviced Mortgage Loan by the Master Servicer or any Other Master Servicer
shall be conclusive and binding on the Certificateholders and may, in all cases,
be relied on by the Trustee and the Master Servicer. In making any
nonrecoverability
49
determination as set forth above, the relevant party shall be entitled (i) to
consider (among other things) the obligations of the Mortgagor under the terms
of the Mortgage Loan as it may have been modified, (ii) to consider (among other
things) the related Mortgaged Properties in their "as is" then-current
conditions and occupancies and such party's assumptions (consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (iii) to estimate and consider, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer
(among other things), future expenses and (iv) to estimate and consider,
consistent with the Servicing Standard (among other things), the timing of
recovery to such party. In addition, the relevant party may, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer,
update or change its nonrecoverability determinations at any time in accordance
with the terms hereof and may, consistent with the Servicing Standard in the
case of the Master Servicer or the Special Servicer, obtain from the Special
Servicer any analysis, appraisals or other information in the possession of the
Special Servicer for such purposes.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class T
or Residual Certificate.
"NON-SERVICED COMPANION MORTGAGE LOAN" means a loan not included in
the Trust that is generally payable on a pari passu basis with the related
Non-Serviced Mortgage Loan. The Non-Serviced Companion Mortgage Loans related to
the Trust are Beacon Seattle & DC Portfolio Companion Loan, the RREEF Portfolio
Companion Loan and the Deptford Mall Companion Loan.
"NON-SERVICED MORTGAGE LOAN" means a Mortgage Loan included in the
Trust but serviced under another agreement. The Non-Serviced Mortgage Loans in
the Trust are the Beacon Seattle & DC Portfolio Pari Passu Loan, the RREEF
Portfolio Pari Passu Loan and the Deptford Mall Pari Passu Loan.
"NON-SERVICED MORTGAGE LOAN FISCAL AGENT" means the applicable
"fiscal agent" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, the
applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the mortgage securing a
Non-Serviced Mortgage Loan. The only Non-Serviced Mortgage Loan Mortgages
related to the Trust are the Beacon Seattle & DC Portfolio Pari Passu Mortgage,
the RREEF Portfolio Pari Passu Mortgage and the Deptford Mall Pari Passu
Mortgage.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means a
pooling and servicing agreement under which a Non-Serviced Mortgage Loan is
serviced. The Non-Serviced Mortgage Loan Pooling and Servicing Agreements
related to the Trust are the
50
MSCI 2007-HQ11 Pooling and Servicing Agreement and the MSCI 2007-IQ14 Pooling
and Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (u) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, (v) in the
case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (w) in the case of the
Trustee, a certificate signed by a Responsible Officer, (x) in the case of a
Seller, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, any Managing Director or Director, the President, or any
Executive Vice President, any Senior Vice President, Vice President, Second Vice
President or Assistant Vice President, any Treasurer, any Assistant Treasurer or
any Secretary or Assistant Secretary or any other authorized signatory, (y) in
the case of the Paying Agent, a certificate signed by a Responsible Officer,
each with specific responsibilities for the matters contemplated by this
Agreement and (z) in the case of any other Additional Servicer, a certificate
signed by one or more of the Chairman of the Board, any Vice Chairman, the
President, or any Senior Vice President, Vice President or Assistant Vice
President or an employee thereof designated as a Servicing Officer
"OPERATING ADVISER" shall mean the Person (or its designee) elected
to serve as the Operating Adviser pursuant to Section 9.37(a); provided, that,
with respect to an A/B Mortgage Loan, a holder of the related B Note, will, to
the extent set forth in the related Intercreditor Agreement, instead be entitled
to the rights and powers granted to the Operating Adviser to the extent such
rights and powers relate to the related A/B Mortgage Loan (but only so long as
the holder of the related B Note is the directing holder or controlling holder,
as defined in the related Intercreditor Agreement). The initial Operating
Adviser will be LNR Securities Holdings, LLC.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as
applicable, reasonably acceptable in form and substance to the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent, as applicable, and who is
not in-house counsel to the party required to deliver such opinion but who, in
the good faith judgment of the Trustee and the Paying Agent, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a
51
REMIC for tax purposes, of any REMIC Pool or status as a "grantor trust" under
the Code of the Class A-2FL Grantor Trust, the Class A-MFL Grantor Trust, the
Class A-JFL Grantor Trust or the Excess Interest Grantor Trust.
"OPTION" has the meaning set forth in Section 9.36.
"OPTION HOLDER" has the meaning set forth in Section 9.36.
"OPTION PURCHASE PRICE" has the meaning set forth in Section 9.36(b)
hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable,
which has been deposited into a commercial mortgage securitization trust, the
date under the related Other Companion Loan Pooling and Servicing Agreement that
the related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means a
pooling and servicing agreement relating to a Non-Serviced Companion Mortgage
Loan or a Serviced Companion Mortgage Loan that creates a commercial mortgage
securitization trust, as applicable.
"OTHER MASTER SERVICER" means applicable "master servicer" under an
Other Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in Section
9.4(d) hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in Section 9.4(d)
hereof.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I ADVANCE" shall mean (other than with respect to a Serviced
Companion Mortgage Loan or a B Note) (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the Master Servicer as of the related Determination Date
(subject to Section 5.1(h)), the portion of such Scheduled Payment not received;
(ii) with respect to any Mortgage Loan that is a Balloon Mortgage Loan
(including any REO Property as to which the related Mortgage Loan provided for a
Balloon Payment) as to which a Balloon Payment was due during or prior to the
related Collection Period but was delinquent, in whole or in part, as of the
related Determination Date, an amount equal to the excess, if any, of the
Assumed Scheduled Payment for such Balloon Mortgage Loan for the
52
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan related to such REO Property during the related
Collection Period, over remittances of REO Income to the Master Servicer by the
Special Servicer, reduced by any amounts required to be paid as taxes on such
REO Income (including taxes imposed pursuant to Section 860G(c) of the Code);
provided, however, that the interest portion of any Scheduled Payment or Assumed
Scheduled Payment shall be advanced at a per annum rate equal to the sum of the
REMIC I Net Mortgage Rate relating to such Mortgage Loan or such REO Mortgage
Loan and the Trustee Fee Rate, such that the Scheduled Payment or Assumed
Scheduled Payment to be advanced as a P&I Advance shall be net of the Master
Servicing Fee, the Excess Servicing Fee and the Primary Servicing Fee; and
provided, further, that the Scheduled Payment or Assumed Scheduled Payment for
any Mortgage Loan which has been modified shall be calculated based on its terms
as modified and provided, further, that the interest component of any P&I
Advance with respect to a Mortgage Loan as to which there has been an Appraisal
Reduction shall be an amount equal to the product of (i) the amount of interest
required to be advanced without giving effect to this proviso and (ii) a
fraction, the numerator of which is the Principal Balance of such Mortgage Loan
as of the immediately preceding Determination Date less any Appraisal Reduction
applicable to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage
Loan or a Serviced Pari Passu Mortgage Loan, the portion of such Appraisal
Reduction allocable (based upon their respective Principal Balances) to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan under the
related Intercreditor Agreement or the related Loan Pair Intercreditor
Agreement, or in the case of an A/B Mortgage Loan, the portion of such Appraisal
Reduction allocable to the A Note pursuant to the definition of "Appraisal
Reduction") and the denominator of which is the Principal Balance of such
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the related Mortgaged Property
generally, the portion thereof attributable to any Non-Serviced Mortgage Loan
shall be determined based on the outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan; provided, however, that
53
the Pari Passu Loan Servicing Fee Rate for purposes of any Non-Serviced Mortgage
Loan set forth on Schedule XII as to which such fee is calculated on a 30/360
basis shall be (a) the related "Master Servicing Fee Rate" set forth in the
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, multiplied by (b) 30
divided by the actual number of days in the loan accrual period with respect to
such loan.
"PARKOFF PORTFOLIO A/B MORTGAGE LOAN" means the Parkoff Portfolio
Mortgage Loan and the Parkoff Portfolio B Note.
"PARKOFF PORTFOLIO B NOTE" means, with respect to the Parkoff
Portfolio Mortgage Loan, the related subordinated B Note not included in the
Trust, which is subordinated in right of payment to the Parkoff Portfolio
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"PARKOFF PORTFOLIO MORTGAGE" means the mortgage securing the Parkoff
Portfolio A/B Mortgage Loan and any other note secured by the related Mortgaged
Property.
"PARKOFF PORTFOLIO MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 2 on the Mortgage Loan Schedule and which is senior to the
Parkoff Portfolio B Note and is secured by the related Mortgaged Property
pursuant to the Parkoff Portfolio Mortgage. The Parkoff Portfolio Mortgage Loan
is a "Mortgage Loan."
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC
Regular Certificates, other than the Class X, Class E, Class F, Class G and
Class H Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter
(and with respect to the Class X, Class E, Class F, Class G and Class H
Certificates, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) the Class A-1 Certificates shall equal the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto, (iv)
the Class A-1A, Class A-2, Class A-3, Class A-4, Class A-5, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (v) the Class A-2FL Certificates shall equal the per annum
rate equal to LIBOR plus 0.250%, provided, however, that under the circumstances
set forth in Section 6.12 regarding defaults or terminations under the Class
A-2FL Swap Contract, the Pass-Through Rate of the Class A-2FL Certificates shall
equal the Pass-Through Rate of the Class A-2FL Regular Interest subject to
reduction in accordance with the Class A-2FL Swap Contract, (vi) the Class A-MFL
Certificates shall equal the per annum rate equal to LIBOR plus 0.415%,
provided, however, that under the circumstances set forth in Section 6.12
regarding defaults or terminations under the Class A-MFL Swap Contract, the
Pass-Through Rate of the Class A-MFL Certificates shall equal the Pass-Through
Rate of the Class A-MFL Regular Interest subject to reduction in accordance with
the Class A-MFL Swap Contract,
54
(vii) the Class A-JFL Certificates shall equal the per annum rate equal to LIBOR
plus 0.460%, provided, however, that under the circumstances set forth in
Section 6.12 regarding defaults or terminations under the Class A-JFL Swap
Contract, the Pass-Through Rate of the Class A-JFL Certificates shall equal the
Pass-Through Rate of the Class A-JFL Regular Interest subject to reduction in
accordance with the Class A-JFL Swap Contract, (viii) the Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates
shall equal the lesser of (A) 5.812% per annum and (B) the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (ix) the Class X
Certificates shall equal the per annum rate equal to the quotient of the Accrued
Certificate Interest thereon for such Distribution Date and the Class X Notional
Amount, times twelve and (x) the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest shall equal the Weighted
Average REMIC I Net Mortgage Rate.
"PAYING AGENT" means Xxxxx Fargo Bank, National Association and any
successor or assign, as provided herein. The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent shall be
distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to
the Paying Agent in an amount agreed to between the Trustee and the Paying
Agent.
"PCAOB" means the Public Company Accounting Oversight Board.
"PENALTY CHARGES" means the default interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERFORMING PARTY" has the meaning set forth in Section 13.12.
"PERMITTED MEZZANINE LOAN HOLDER" means, with respect to any
mezzanine loan, the Seller or any other holder of a mezzanine loan with respect
to which each Rating Agency has confirmed in writing to the Special Servicer and
the Trustee that the holding of such mezzanine loan by such Person would not
cause a qualification, downgrade or withdrawal of any of such Rating Agency's
then-current ratings on the Certificates (except to the extent that such
confirmation is not required pursuant to the terms of the related intercreditor
agreement).
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
55
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations
set forth in 29 C.F.R. ss. 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including payment of a Balloon Payment) is made after the
Due Date for such Mortgage Loan through and including the last day of the
Collection Period, the amount of interest that accrues on the amount of such
Principal Prepayment from such Due Date to the date such payment was made, plus
(if made) any payment by the Mortgagor of interest that would have accrued to
the next succeeding Due Date (net of the Master Servicing Fee, the Primary
Servicing Fee, the Excess Servicing Fees, the Special Servicing Fee, the Trustee
Fee and the servicing fee and trustee fee payable in connection with any
Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan), to
the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment) made during any Collection Period prior
to the Due Date for such Mortgage Loan in such Collection Period (including any
shortfall resulting from such a payment during the grace period relating to such
Due Date). The amount of any Prepayment Interest Shortfall shall equal the
excess of (A) the aggregate amount of interest which would have accrued on the
Scheduled Principal Balance of such Mortgage Loan, if the Mortgage Loan had paid
on its Due Date and such Principal Prepayment or Balloon Payment had not been
made (net of the Master Servicing Fee, the Primary Servicing Fee, the Excess
Servicing Fees, the Special Servicing Fee, the Trustee Fee and the servicing fee
payable in connection with any Non-Serviced Mortgage Loan (in the case of any
Non-Serviced Mortgage Loan)) over (B) the aggregate interest that did so accrue
through the date such payment was made (net of such fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection
56
Period in connection with Principal Prepayments on such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"PRIMARY SERVICER" means a primary servicer under any applicable
Primary Servicing Agreement. There are no Primary Servicers related to the Trust
as of the Closing Date.
"PRIMARY SERVICING AGREEMENT" means the agreement between the
applicable Primary Servicer and the Master Servicer, under which such applicable
Primary Servicer services the Mortgage Loans set forth on the schedule attached
thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to any
applicable Primary Servicer (or the Master Servicer, as applicable) based on the
per annum rate specified on the Mortgage Loan Schedule, as more specifically set
forth, in the case of the applicable Primary Servicer, in the applicable Primary
Servicing Agreement (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan
for such month).
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes of
performing calculations with respect to any Distribution Date, the principal
balance of such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the
related REO Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all principal and interest payments made or due on or prior to the
Cut-Off Date (assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan
or B Note with a Due Date in July 2007 that is not July 1, 2007, that principal
and interest payments for such month were paid on July 1, 2007), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal with respect to such Mortgage Loan, Serviced Companion Mortgage Loan,
B Note or any related REO Mortgage Loan that have been collected or received
during any preceding Collection Period, other than any Scheduled Payments due in
any subsequent Collection Period, and (ii) any Realized Principal Loss incurred
in respect of such Mortgage Loan or related REO Mortgage Loan during any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-2FL, Class A-3, Class X-0, Xxxxx X-0, Class A-M,
Class A-MFL, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q and Class S Certificates.
57
"PRINCIPAL DISTRIBUTION AMOUNT" means on any Distribution Date, the
amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other than
the principal portion of Balloon Payments) and any Assumed Scheduled Payments,
in each case, to the extent received or advanced, as the case may be, in respect
of the Mortgage Loans and any REO Mortgage Loans (but not in respect of any
Serviced Companion Mortgage Loan or B Note or its successor REO Mortgage Loan)
for their respective Due Dates occurring during the related Collection Period;
plus
(ii) all payments (including Principal Prepayments and the
principal portion of Balloon Payments but not in respect of any Serviced
Companion Mortgage Loan or B Note or its respective successor REO Mortgage Loan)
and any other collections (including Liquidation Proceeds (other than the
portion thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Master Servicer as recoveries of principal
thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans during the related Collection Period that, in each
case, represents a delinquent amount as to which an Advance had been made, which
Advance (or interest thereon) was previously reimbursed during the Collection
Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement
Amount for which a deduction was made under clause (II)(A) below with respect to
such Distribution Date (with respect to each such Mortgage Loan, allocated first
to the Loan Group Principal Distribution Amount related to the Loan Group that
does not include such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such Mortgage Loan);
and
(C) the aggregate amount of any collections received on or in
respect of the Mortgage Loans during the related Collection Period that, in each
case, represents a recovery of an amount previously determined (in a Collection
Period for a prior Distribution Date) to have been a Nonrecoverable Advance (or
interest thereon) and for which a deduction was made under clause (II)(B) below
with respect to a prior Distribution Date (with respect to each such Mortgage
Loan, allocated first to the Loan Group Principal Distribution Amount related to
the Loan Group that does not include such Mortgage Loan, and then to the Loan
Group Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan), and which are applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to
58
one or more of the Master Servicer, the Special Servicer and the Trustee from
amounts in the Collection Account allocable to principal received or advanced
with respect to the Mortgage Loans pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related Collection
Period to one or more of the Master Servicer, the Special Servicer and the
Trustee during the related Collection Period from amounts in the Collection
Account allocable to principal received or advanced with respect to the Mortgage
Loans pursuant to subsection (iv) of Section 5.2(a)(II).
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan, a Serviced Companion Mortgage Loan
or a B Note which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement
Memorandum dated July 26, 2007, pursuant to which the Class X, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q, Class S and Class T Certificates will be offered for sale.
"PROHIBITED PARTY" means (i) a Person that is a proposed Servicing
Function Participant that the Master Servicer, any Primary Servicer, the Paying
Agent, the Special Servicer or the Trustee, as applicable, seeks to retain as a
Servicing Function Participant and that the Master Servicer, any Primary
Servicer, the Paying Agent, the Special Servicer or the Trustee, as applicable,
has actual knowledge failed on any prior date to comply with its Exchange Act or
Regulation AB obligations with respect to the Subject Securitization Transaction
or any other commercial mortgage securitization or (ii) any Person identified in
writing (delivered prior to the date of retention) by the Depositor to the
Master Servicer, any Primary Servicer, the Paying Agent, the Special Servicer or
the Trustee, as applicable, as a Person that the Depositor has knowledge has
failed on any prior date to comply with its Exchange Act or Regulation AB
obligations with respect to the Subject Securitization Transaction or any other
commercial mortgage securitization.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PROSPECTUS SUPPLEMENT" has the meaning set forth in the Preliminary
Statement hereto.
"PURCHASE PRICE" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the Seller of a Mortgage Loan sold by the
Seller, (ii) the determination of fair value of an REO Mortgage Loan with
respect to a liquidation by the Special Servicer pursuant to Section 9.15 or
(iii) the determination of fair value of a Mortgage Loan in connection with a
purchase by the Option Holder pursuant to Section 9.36 under the circumstances
set forth therein, a price equal to the sum (without duplication) of (A) 100% of
the unpaid Principal
59
Balance of such Mortgage Loan (or deemed Principal Balance, in the case of an
REO Mortgage Loan), plus (B) accrued but unpaid interest thereon calculated at
the Mortgage Rate to, but not including, the Due Date in the Collection Period
in which such purchase or liquidation occurs, plus (C) the amount of any
expenses related to such Mortgage Loan and any related Serviced Companion
Mortgage Loan, B Note or REO Property (including any Servicing Advances and
Advance Interest thereon (which have not been paid by the Mortgagor or out of
Late Fees or default interest paid by the related Mortgagor on the related
Mortgage Loan and any related Serviced Companion Mortgage Loan or B Note)
related to such Mortgage Loan and any related Serviced Companion Mortgage Loan
or B Note, the amount of any Servicing Advances (and Advance Interest thereon)
that were reimbursed from principal collections on the Mortgage Pool pursuant to
Section 5.2(a)(II)(iii) and not subsequently recovered from the related
Mortgagor, and all Special Servicing Fees and Liquidation Fees paid with respect
to the Mortgage Loan and any related Serviced Companion Mortgage Loan or B Note)
that are reimbursable or payable to the Master Servicer, the Special Servicer,
the Paying Agent, the Trustee, any Non-Serviced Mortgage Loan Master Servicer or
any Non-Serviced Mortgage Loan Special Servicer, plus (D) if such Mortgage Loan
or REO Mortgage Loan is being repurchased or substituted for by a Seller
pursuant to the Mortgage Loan Purchase Agreement, all expenses reasonably
incurred or to be incurred by the applicable Primary Servicer, the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent or the Trustee
in respect of the Material Breach or Material Document Defect giving rise to the
repurchase or substitution obligation (and that are not otherwise included in
(C) above) plus, in connection with a purchase by a Seller, any Liquidation Fee
payable by such Seller in accordance with the proviso contained in the
definition of "Liquidation Fee".
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b), (iii) the purchase by the Option Holder of a Mortgage Loan
pursuant to Section 9.36, (iv) the purchase of an A Note by a holder of the
related B Note in accordance with the terms of the related Intercreditor
Agreement or (v) the purchase of a Mortgage Loan by a holder of a mezzanine loan
under the related mezzanine intercreditor agreement.
"QUALIFIED BIDDER" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch or if not so rated, then Fitch has issued a Rating Agency
Confirmation and "A" by S&P if rated by S&P or if not rated by S&P, then S&P has
issued a Rating Agency Confirmation, and (ii) with respect to the Servicer
Errors and Omissions
60
Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim
paying ability no lower than "A" by Fitch if rated by Fitch, or if not rated by
Fitch, then rated A:IX by A.M. Best or as to which Fitch has issued a Rating
Agency Confirmation, and "A" by S&P if rated by S&P or if not rated by S&P, then
S&P has issued a Rating Agency Confirmation, or (iii) in either case, a company
not satisfying clause (i) or (ii) but with respect to which a Rating Agency
Confirmation is obtained. "Qualified Insurer" shall also mean any entity that
satisfies all of the criteria, other than the ratings criteria, set forth in one
of the foregoing clauses and whose obligations under the related insurance
policy are guaranteed or backed by an entity that satisfies the ratings criteria
set forth in such clause (construed as if such entity were an insurance company
referred to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the Certificate Account, and shall be
treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not greater than, and not more than two years
less than, that of the Deleted Mortgage Loan; (iv) has (A) an original
Loan-to-Value Ratio not greater than the lesser of (x) the current Loan-to-Value
Ratio of the Deleted Mortgage Loan set forth under the heading "Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) 75% and (B) has a
current Debt Service Coverage Ratio for the four calendar quarters immediately
preceding the repurchase or replacement of not less than the greater of (x) the
current Debt Service Coverage Ratio of the Deleted Mortgage Loan set forth under
the heading "NCF DSCR" in Appendix II to the Final Prospectus Supplement and (y)
1.25x; (v) will comply with all of the representations and warranties relating
to Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard, raise material issues that have not been adequately addressed; (vii)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(viii) as to which the Trustee and the Paying Agent have received an Opinion of
Counsel, at the Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Mortgage Loan may have a Maturity Date after the date three
years prior to the Rated Final Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
Rating Agency Confirmation is obtained, and provided, further that no such
Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
61
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (ii) above and the remaining
term to stated maturity referred to in clause (iii) above shall be determined on
a weighted average basis (provided, that the REMIC I Net Mortgage Rate for any
Qualifying Substitute Mortgage Loan may not be less than the highest
Pass-Through Rate of any outstanding Class of Certificates (other than the Class
A-2FL Certificates, the Class A-MFL Certificates and the Class A-JFL
Certificates), the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest or the Class A-JFL Regular Interest that is not based on, or subject to
a cap equal to, the Weighted Average REMIC I Net Mortgage Rate). Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall certify
that such Mortgage Loan meets all of the requirements of this definition and
shall send such certification to the Paying Agent, which shall deliver a copy of
such certification to the Special Servicer, the Trustee and the Operating
Adviser promptly, and in any event within five Business Days following the
Paying Agent's receipt of such certification.
"RAMADA PLAZA BEACH RESORT A/B MORTGAGE LOAN" means the Ramada Plaza
Beach Resort Mortgage Loan and the Ramada Plaza Beach Resort B Note.
"RAMADA PLAZA BEACH RESORT B NOTE" means, with respect to the Ramada
Plaza Beach Resort Mortgage Loan, the related subordinated B Note not included
in the Trust, which is subordinated in right of payment to the Ramada Plaza
Beach Resort Mortgage Loan to the extent set forth in the related Intercreditor
Agreement.
"RAMADA PLAZA BEACH RESORT MEZZANINE LOAN" means, with respect to
the Ramada Plaza Beach Resort Mortgage Loan, the related mezzanine loan.
"RAMADA PLAZA BEACH RESORT MORTGAGE" means the mortgage securing the
Ramada Plaza Beach Resort A/B Mortgage Loan and any other note secured by the
related Mortgaged Property.
"RAMADA PLAZA BEACH RESORT MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 15 on the Mortgage Loan Schedule and which is
senior to the Ramada Plaza Beach Resort B Note and is secured by the related
Mortgaged Property pursuant to the Ramada Plaza Beach Resort Mortgage. The
Ramada Plaza Beach Resort Mortgage Loan is a "Mortgage Loan."
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated
Class of Certificates, the Distribution Date in April 2049.
"RATING AGENCIES" means Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency,
provided that with respect to any matter affecting any Serviced Companion
Mortgage Loan, such confirmation shall also refer to the nationally recognized
statistical rating organizations then rating the
62
securities representing an interest in such loan and such rating organizations'
respective ratings of such securities.
"RATING AGENCY TRIGGER EVENT" means if the Swap Counterparty
Guarantor's long-term rating is not at least "A" by Fitch or "A" by S&P.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses treated as Realized Interest
Losses pursuant to clause (iv) of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss set forth in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Liquidation
Realized Loss, to the extent that it does not exceed the Principal Balance (plus
the amount of any Unliquidated Advance with respect to such Mortgage Loan) of
the Mortgage Loan (or deemed Principal Balance, in the case of REO Property),
(ii) in the case of a Modification Loss, the amount of such Modification Loss
set forth in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Bankruptcy Loss attributable to the
reduction in the Principal Balance of the related Mortgage Loan, (iv) in the
case of an Expense Loss, the amount of such Expense Loss (other than Expense
Losses resulting from the payment of Special Servicing Fees) to the extent that
such Expense Loss does not exceed amounts collected in respect of the Mortgage
Loans that were identified as allocable to principal in the Collection Period in
which such Expense Losses were incurred, and any such excess shall be treated as
a Realized Interest Loss and, (v) the amounts in respect thereof that are
withdrawn from the Certificate Account pursuant to Section 6.6(b)(i).
Notwithstanding clause (iv) of the preceding sentence, to the extent that
Expense Losses (exclusive of Expense Losses resulting from payment of the
Special Servicing Fee) exceed amounts with respect to a Mortgage Loan that were
identified as allocable to principal, such excess shall be treated as a Realized
Interest Loss.
"RECORD DATE" means, (i) with respect to each class of offered
certificates, other than the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates, for each Distribution Date, the
last business day of the calendar month immediately preceding the month in which
such Distribution Date occurs and (ii) with respect to the Class A-2FL
Certificates, the Class A-MFL Certificates and the Class A-JFL Certificates,
for so long as no related Swap Default has occurred and is continuing and the
related Swap Contract is in effect, subject to Section 6.12, the Business Day
immediately preceding the related Distribution Date.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan, a Serviced Companion Mortgage Loan, a
B Note or REO Property
63
following the period in which a Final Recovery Determination occurs plus other
amounts defined as "Recoveries" herein.
"REGISTERED CERTIFICATES" has the meaning set forth in the
Preliminary Statement hereto.
"REGULATION AB" means 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 S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute a
Rehabilitated Mortgage Loan unless its related B Note would constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a Rehabilitated
Mortgage Loan unless its related A Note also would constitute a Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
64
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"RELEVANT SERVICING CRITERIA" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicer, the Special Servicer, any Primary Servicer, the Paying Agent and the
Trustee, on Schedule XV attached hereto). For clarification purposes, multiple
Reporting Servicers can have responsibility for the same Relevant Servicing
Criteria and some of the Servicing Criteria will not be applicable to certain
Reporting Servicers. With respect to a Servicing Function Participant engaged by
the Trustee, the Master Servicer, the Special Servicer, any Primary Servicer,
the Paying Agent or any Sub-Servicer, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria applicable to the Trustee,
the Master Servicer, the Special Servicer, any Primary Servicer, the Paying
Agent or such Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
with respect thereto as shall from time to time be held in the Collection
Account, the Certificate Account, the Reserve Account, the Distribution Account
(other than the portions thereof constituting the Class A-2FL Floating Rate
Account, the Class A-MFL Floating Rate Account, the Class A-JFL Floating Rate
Account and the Excess Interest Sub-account) and the Interest Reserve Account,
the Insurance Policies (other than the interests of the holder of any
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage Loan or B
Note therein) and any REO Properties or beneficial interests therein (other than
the interests of the holder of any Non-Serviced Companion Mortgage Loan or any
Serviced Companion Mortgage Loan or B Note therein), for which a REMIC election
will be made pursuant to Section 12.1(a) hereof. The Class A-2FL Regular
Interest, the Class A-MFL Regular Interest, the Class A-JFL Regular Interest,
the Class A-2FL Swap Contract, the Class A-MFL Swap Contract, the Class A-JFL
Swap Contract, the Class A-2FL Floating Rate Account, the Class A-MFL Floating
Rate Account, the Class A-JFL Floating Rate Account, the Excess Interest on the
Mortgage Loans and the Excess Interest Sub-account shall constitute assets of
the Trust but shall not be a part of any REMIC Pool formed hereunder. The
Non-Serviced Companion Mortgage Loans and any amounts payable thereon shall not
constitute assets of the Trust or any REMIC Pool formed hereunder. No B Note or
any amounts payable thereon shall constitute an asset of the Trust or any REMIC
Pool formed hereunder. No Serviced Companion Mortgage Loan or any amounts
payable thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the REMIC I Residual Interest.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal to (a) with
respect to any Mortgage Loan that accrues interest on the basis of a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account any increase therein after the
Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms
65
thereof following the Cut-Off Date, minus (ii) the Administrative Cost Rate, and
(b) with respect to any Mortgage Loan that accrues interest on a basis other
than a 30/360 basis, the annualized rate that, when applied to the Principal
Balance of the related Mortgage Loan (on the day prior to the Due Date preceding
such Distribution Date) on a 30/360 basis for the related loan accrual period,
yields the amount of net interest that would have accrued during the related
loan accrual period assuming a net interest rate equal to the rate set forth in
clause (a) above, and assuming an interest accrual basis that is the same as the
actual interest accrual basis of such Mortgage Loan, provided that for purposes
of this clause (b), (i) the REMIC I Net Mortgage Rate for the loan accrual
period relating to the Due Dates in both January (commencing in 2008) and
February (commencing in 2008) in any year that is not a leap year and in
February in any year that is a leap year, shall be determined net of any amounts
transferred to the Interest Reserve Account and (ii) the REMIC I Net Mortgage
Rate for the loan accrual period relating to the Due Date in March (commencing
in 2008) and the loan accrual period relating to the Due Date related to the
final Distribution Date shall be determined taking into account the addition of
any amounts withdrawn from the Interest Reserve Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC I RESIDUAL INTEREST" means the sole class of "residual
interests" in REMIC I and which shall be evidenced by the Class R-I
Certificates.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election will be made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-1 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-1A Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-2 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2FL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial
66
Certificate Balance equal to the Aggregate Certificate Balance of the Class
A-2FL Certificates, and which has a Pass-Through Rate equal to the Weighted
Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-3 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-4 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-5 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-MFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-MFL Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-JFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-JFL Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate
67
Balance equal to the Aggregate Certificate Balance of the Class A-C
Certificates, and which has a Pass-Through Rate equal to the Weighted Average
REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class D Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class F Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class G Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class L Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
68
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class S Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1, the REMIC II Regular Interest A-1A, the REMIC II Regular
Interest A-2, the REMIC II Regular Interest A-2FL, the REMIC II Regular Interest
A-3, the REMIC II Regular Interest A-4, the REMIC II Regular Interest A-5, the
REMIC II Regular Interest A-M, the REMIC II Regular Interest A-MFL, the REMIC II
Regular Interest A-J, the REMIC II Regular Interest A-JFL, the REMIC II Regular
Interest B, the REMIC II Regular Interest C, the REMIC II Regular Interest D,
the REMIC II Regular Interest E, the REMIC II Regular Interest F, the REMIC II
Regular Interest G, the REMIC II Regular Interest H, the REMIC II Regular
Interest J, the REMIC II Regular Interest K, the REMIC II Regular Interest L,
the REMIC II Regular Interest M, the REMIC II Regular Interest N, the REMIC II
Regular Interest O, the REMIC II Regular Interest P, the REMIC II Regular
Interest Q and the REMIC II Regular Interest S.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election will be made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" means, collectively, the REMIC Regular
Certificates and the Class R-III Certificates.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-5 Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates,
69
Class M Certificates, Class N Certificates, Class O Certificates, Class P
Certificates, Class Q Certificates, Class S Certificates and Class X
Certificates, the Class A-2FL Regular Interest, the Class A-MFL Regular Interest
and the Class A-JFL Regular Interest.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-5, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S and Class X
Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character set forth in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had not
been security for an A/B Mortgage Loan or Loan Pair for any Collection Period,
all income received in connection with such REO Property during such period less
any operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid during such period or, with respect
to an REO Property that had been security for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts set forth above received with respect to such REO
Property and allocable to the related A Note or Serviced Pari Passu Mortgage
Loan, as applicable, pursuant to the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable to the holder of the related Serviced
Pari Passu Mortgage or the related A Note, as applicable, shall be included in
REO Income.
70
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein,
if the Mortgaged Property securing any Loan Pair or the Mortgaged Property
securing an A/B Mortgage Loan has been acquired by the Trust) acquired by the
Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions; provided
that a Mortgaged Property that secures a Non-Serviced Mortgage Loan shall
constitute an REO Property if and when it is acquired under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement for the benefit of
the Trustee as the holder of such Non-Serviced Mortgage Loan and of the holder
of the related Non-Serviced Companion Loan(s) through foreclosure, acceptance of
a deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in
connection with a default or otherwise treated as foreclosure property under the
REMIC Provisions. The Special Servicer shall not have any obligations with
respect to an REO Property that relates to a Mortgaged Property that secures a
Non-Serviced Mortgage Loan and all references to the Special Servicer's
obligations in this Agreement with respect to "REO Property" shall exclude any
such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPORTABLE EVENT" has the meaning set forth in Section 13.7.
"REPORTING SERVICER" means the Master Servicer, the Special Servicer
and any Servicing Function Participant (including any Primary Servicer, the
Paying Agent, the Trustee and each Sub-Servicer), as the case may be.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair or B
Note as to which an Appraisal Event has occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account or a subaccount of an Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class
R-I Certificates; with respect to REMIC II, the Class R-II Certificates; and
with respect to REMIC III, the Class R-III Certificates.
71
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee, any officer assigned to the Global Securities and Trust Services group,
or with respect to the Paying Agent, any officer assigned to the Corporate Trust
Services group, each with specific responsibilities for the matters contemplated
by this Agreement and when used with respect to any successor Trustee or Paying
Agent, any Vice President, Assistant Vice President, corporate trust officer or
any assistant corporate trust officer or persons performing similar roles on
behalf of the Trustee or Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a CMSA Comparative Financial Status Report; (ii) without
duplication with Section 8.14, a CMSA NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA Special Servicer
Loan File and (viii) to the extent applicable, a realized loss report
substantially in the form included in Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class S, Class
Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, then the Class
A-J Certificates and the Class A-JFL Regular Interest, pro rata with each other,
then the Class A-M Certificates and the Class A-MFL Regular Interest, pro rata
with each other, and finally to the Class X and Class A Senior Certificates
(including the Class A-2FL Certificates or the Class A-2FL Regular Interest, as
applicable, which are payable pro rata with the Class A-2 Certificates), on a
pro rata basis, as set forth herein.
"RREEF PORTFOLIO COMPANION LOAN A-1" means the notes secured by the
RREEF Portfolio Pari Passu Mortgage on a pari passu basis with the RREEF
Portfolio Pari Passu Loan that is included in a securitization known as the
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13. The RREEF Portfolio Companion Loan A-1
is not a "Mortgage Loan."
"RREEF PORTFOLIO COMPANION LOAN A-2" means the notes secured by the
RREEF Portfolio Pari Passu Mortgage on a pari passu basis with the RREEF
Portfolio Pari Passu Loan that is included in a securitization known as the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11. The RREEF Portfolio Companion Loan A-2
is not a "Mortgage Loan."
"RREEF PORTFOLIO COMPANION LOAN A-5" means the notes secured by the
RREEF Portfolio Pari Passu Mortgage on a pari passu basis with the RREEF
Portfolio Pari Passu Loan that is included in a securitization known as the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11. The RREEF Portfolio Companion Loan A-5
is not a "Mortgage Loan."
"RREEF PORTFOLIO COMPANION LOAN A-6" means the notes secured by the
RREEF Portfolio Pari Passu Mortgage on a pari passu basis with the RREEF
Portfolio Pari Passu Loan that is included in a securitization known as the
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13. The RREEF Portfolio Companion Loan A-6
is not a "Mortgage Loan."
72
"RREEF PORTFOLIO COMPANION LOAN" means, collectively, the RREEF
Portfolio Companion Loan A-1, the RREEF Portfolio Companion Loan A-2, the RREEF
Portfolio Companion Loan A-5 and the RREEF Portfolio Companion Loan A-6.
"RREEF PORTFOLIO PARI PASSU LOAN" means the Mortgage Loans
designated as Mortgage Loan Nos. 4 on the Mortgage Loan Schedule, which are
secured on a pari passu basis with the RREEF Portfolio Companion Loan pursuant
to the RREEF Portfolio Pari Passu Mortgage. The RREEF Portfolio Pari Passu Loan
is a "Mortgage Loan."
"RREEF PORTFOLIO PARI PASSU MORTGAGE" means the mortgage securing
the RREEF Portfolio Pari Passu Loan and the RREEF Portfolio Companion Loan.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"XXXXXXXX-XXXXX ACT" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in Section
13.6.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan
for purposes of performing calculations with respect to any Distribution Date,
the Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
73
"SELLER" means MSMCH.
"SELLER SUB-SERVICER" means a Sub-Servicer or Additional Servicer
required to be retained by a Master Servicer or Special Servicer, as applicable,
by a Seller, as listed on Schedule XX hereto.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means a mortgage loan that is
serviced under this Agreement, is not a "Mortgage Loan" included in the Trust,
but is paid on a pari passu basis with a Mortgage Loan included in the Trust.
The only Serviced Companion Mortgage Loan related to the Trust is The Xxxxx
Companion Loan.
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of
the custodial sub-account(s) of the Certificate Account (but which are not
included in the Trust) created and maintained by the Master Servicer pursuant to
Section 5.1(c) on behalf of the holder of the related Serviced Companion
Mortgage Loan. Any such sub-account(s) shall be maintained as a sub-account of
an Eligible Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a
Serviced Pari Passu Mortgage Loan and its related Serviced Companion Mortgage
Loan secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means a Mortgage Loan that is
included in the Trust and paid on a pari passu basis with a Serviced Companion
Mortgage Loan. The only Serviced Pari Passu Mortgage Loan in the Trust is The
Xxxxx Xxxx Passu Loan.
"SERVICE(S)(ING)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee, the Custodian or the Paying Agent,
as the case may be, (subject to standard exclusions) for all losses (less any
deductible) sustained as a result of any theft, embezzlement, fraud or other
dishonest act on the part of the Master Servicer's, the Special Servicer's, the
Trustee's, the Custodian's or the Paying Agent's, as the case may be, directors,
officers or employees and is maintained in accordance with Section 8.2, Section
9.2 and Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents
listed in the definition of "Mortgage File" relating to a Mortgage Loan and
shall also include, to the extent
74
required to be (and actually) delivered to the Seller pursuant to the applicable
Mortgage Loan documents, copies of the following items: the Mortgage Note, any
Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, any insurance policies or
certificates (as applicable), any property inspection reports, any financial
statements on the property, any escrow analysis, any tax bills, any Appraisal,
any environmental report, any engineering report, any asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Special Servicer or the Trustee, as the case may be, designated as
a Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee, as the
case may be, to protect and preserve the security for such Mortgage Loan and/or
(if applicable) the related Serviced Companion Mortgage Loan or B Note.
"SERVICING CRITERIA" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"SERVICING FUNCTION PARTICIPANT" means any Person, other than the
Master Servicer and the Special Servicer, that, within the meaning of Item 1122
of Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their Principal Balance). For clarification purposes, the Trustee, any
Primary Servicer and the Paying Agent are each Servicing Function Participants.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer, or an Additional Servicer, as the case may be, involved in, or
responsible for, the administration and servicing of the Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee by the Master Servicer, or an Additional Servicer, as the case may be,
and signed by an officer of the Master Servicer, or an Additional Servicer, as
the case may be, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer or
the Special Servicer, as the case may be, to service and administer the Mortgage
Loans (and any Serviced Companion Mortgage Loan and B Note but not any
Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole, taking into
account the subordinated nature of such B Note (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note (and, in the case of any Loan Pair or any A Note
and B Note, the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, further as follows:
75
(a) with the same care, skill and diligence as is normal and usual
in its general mortgage servicing and REO property management activities on
behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and REO properties that are comparable to those for
which it is responsible hereunder;
(b) with a view to the timely collection of all Scheduled Payments
of principal and interest under the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note or, if a Mortgage Loan, any Serviced Companion
Mortgage Loan or any B Note comes into and continues in default and if, in the
good faith and reasonable judgment of the Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments, the
maximization of the recovery of principal and interest on such Mortgage Loan to
the Certificateholders (as a collective whole) (or in the case of any A/B
Mortgage Loan and its related B Note or any Loan Pair, the maximization of the
recovery of principal and interest on such A/B Mortgage Loan or Loan Pair, as
applicable, to the Certificateholders and the holder of the related B Note or
Serviced Companion Mortgage Loan, as applicable, all taken as a collective
whole, taking into account the subordinated nature of such B Note) on a net
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the rate
determined by the Special Servicer but in any event not less than (i) the
related REMIC I Net Mortgage Rate, in the case of the Mortgage Loans (other than
any A Note or Serviced Pari Passu Mortgage Loan) or (ii) the weighted average of
the mortgage rates on the related A Note and B Note, in the case of any A/B
Mortgage Loan, and on the related Serviced Pari Passu Mortgage Loan and Serviced
Companion Mortgage Loan in the case of any Loan Pair); and without regard to:
(I) any other relationship that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof may have with the related Mortgagor;
(II) the ownership of any Certificate or any interest in any Non-Serviced
Companion Mortgage Loan, Serviced Companion Mortgage Loan, B Note or any
mezzanine loan related to a Mortgage Loan by the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof; (III) the Master
Servicer's obligation to make Advances; (IV) the right of the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (V) any obligation of the Master Servicer (or any Affiliate
thereof) to repurchase any Mortgage Loan from the Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
(x) at its Maturity Date (except, if (a) the Mortgagor is making the related
Assumed Scheduled Payment, (b) the Mortgagor notifies the Master Servicer (who
shall promptly forward such notice to the Special Servicer and the Operating
Adviser) of its intent to refinance such Mortgage Loan and is diligently
pursuing such refinancing, (c) the Mortgagor delivers a firm commitment to
refinance acceptable to the Operating Adviser on or prior to the Maturity Date,
and (d) such refinancing occurs within 60 days of such default which 60 day
period may be extended to 120 days at the Operating Adviser's discretion) or (y)
if any other payment is more than 60 days past due or has not been made on or
before the second Due Date following the Due Date such payment was due; (ii) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which, to the Master Servicer's or the Special
Servicer's knowledge, the Mortgagor has consented to the appointment of a
receiver or conservator in any insolvency or similar proceeding of, or relating
to, such Mortgagor or to all or substantially all of
76
its property, or the Mortgagor has become the subject of a decree or order
issued under a bankruptcy, insolvency or similar law and such decree or order
shall have remained undischarged or unstayed for a period of 30 days; (iii) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Master Servicer or the Special Servicer
shall have received notice of the foreclosure or proposed foreclosure of any
other lien on the Mortgaged Property; (iv) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the Master Servicer or the Special Servicer has knowledge of a default
(other than a failure by the related Mortgagor to pay principal or interest)
which in the good faith reasonable judgment of the Master Servicer or the
Special Servicer materially and adversely affects the interests of the
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
or B Note and which has occurred and remains unremedied for the applicable grace
period specified in such Mortgage Loan (or, if no grace period is specified, 60
days); (v) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note as to which the Mortgagor admits in writing
its inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the Master Servicer or the Special Servicer, (a) (other
than with respect to any A/B Mortgage Loan) a payment default is imminent or is
likely to occur within 60 days, or (b) any other default is imminent or is
likely to occur within 60 days and such default, in the judgment of the Master
Servicer or the Special Servicer, is reasonably likely to materially and
adversely affect the interests of the Certificateholders or the holder of any
related Serviced Companion Mortgage Loan or B Note (as the case may be);
provided, however, that (1) if the holder of the B Note exercised its right to
cure a monetary default and a monetary default occurs in the following month due
to the holder of the B Note's failure to cure, then servicing of such Mortgage
Loan shall be transferred to the Special Servicer on the Business Day following
the expiration of the cure period (as defined in the related Intercreditor
Agreement) of the holder of the B Note if the holder of the B Note does not cure
the current monetary default or (2) if the holder of the B Note has exercised
its right to cure the number of consecutive monetary defaults it is permitted to
cure under the related Intercreditor Agreement and a monetary default occurs in
the following month, then servicing of such Mortgage Loan shall be transferred
to the Special Servicer at the expiration of the Mortgagor's grace period for
the current monetary default. If a Servicing Transfer Event occurs with respect
to an A Note, it shall be deemed to have occurred also with respect to its
related B Note; provided, however, that if a Servicing Transfer Event would
otherwise have occurred with respect to an A Note, but has not so occurred
solely because the holder of the related B Note has exercised its cure rights
under the related Intercreditor Agreement, then a Servicing Transfer Event will
not occur with respect to such A/B Mortgage Loan. If a Servicing Transfer Event
occurs with respect to a B Note, it shall be deemed to have occurred also with
respect to its related A Note. If a Servicing Transfer Event occurs with respect
to any Serviced Pari Passu Mortgage Loan, it shall be deemed to have occurred
also with respect to the related Serviced Companion Mortgage Loan. If a
Servicing Transfer Event occurs with respect to any Serviced Companion Mortgage
Loan, it shall be deemed to have occurred also with respect to the related
Serviced Pari Passu Mortgage Loan. Under the applicable Non-Serviced Mortgage
Loan Pooling and Servicing Agreement, if a Servicing Transfer Event occurs with
respect to any Non-Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also with respect to the related Non-Serviced Mortgage Loan.
77
"SIGNIFICANT MORTGAGE LOAN" means a Mortgage Loan which has a
Principal Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 5% of the Aggregate Certificate
Balance or exceeds $35,000,000 or is one of the then current top 10 loans (by
Principal Balance) in the Mortgage Pool.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"SOLE CERTIFICATEHOLDER" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q, Class S and Class T Certificates; provided, however, that the
Certificate Balances of the Class A-1, Class A-1A, Class A-2, Class A-2FL, Class
A-3, Class X-0, Xxxxx X-0, Class A-M, Class A-MFL, Class A-J, Class A-JFL, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates have
been reduced to zero.
"SPECIAL SERVICER" means LNR Partners, Inc., or any successor
Special Servicer as herein provided, including without limitation, any successor
Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by
78
the Scheduled Principal Balance of such Specially Serviced Mortgage Loan
immediately before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.35% per annum, with a minimum
of $4,000 per month per Specially Serviced Mortgage Loan or REO Property.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note with respect to which a Servicing
Transfer Event has occurred and is continuing. Promptly upon a Mortgage Loan,
Serviced Companion Mortgage Loan or B Note becoming a Specially Serviced
Mortgage Loan, the Master Servicer shall deliver to (which notice shall be
effective upon receipt) the Special Servicer all information, documents and
records relating to such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note as reasonably requested by the Special Servicer to enable it to assume its
duties with respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note. A Specially Serviced Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan from and after the date on which the Special Servicer notifies the
Master Servicer, the Operating Adviser, the Paying Agent and the Trustee, in
accordance with Section 8.1(b), that such Mortgage Loan (and the related B Note
in the case of an A/B Mortgage Loan, and the related Serviced Companion Mortgage
Loan in the case of a Loan Pair) has become a Rehabilitated Mortgage Loan (and,
in the case of an A Note (or B Note) that is or was a Specially Serviced
Mortgage Loan, its related B Note (or A Note) has also become a Rehabilitated
Mortgage Loan and, in the case of a Serviced Pari Passu Mortgage Loan (or
Serviced Companion Mortgage Loan) that is or was a Specially Serviced Mortgage
Loan, its related Serviced Companion Mortgage Loan (or Serviced Pari Passu
Mortgage Loan) has also become a Rehabilitated Mortgage Loan), with respect to
such Servicing Transfer Event, unless and until the Master Servicer notifies the
Special Servicer, the Paying Agent and the Trustee, in accordance with Section
8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUBCONTRACTOR" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the
79
direction or authority of the Master Servicer, the Special Servicer, an
Additional Servicer or a Sub-Servicer.
"SUBJECT SECURITIZATION TRANSACTION" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-M, Class
A-MFL, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates.
"SUB-SERVICER" means any Person that (i) is a Servicing Function
Participant, (ii) Services the assets of the Trust on behalf of (a) the Trust,
(b) the Paying Agent, (c) the Master Servicer, (d) the Special Servicer, (e) any
Additional Servicer (f) or any other Person that otherwise constitutes a
"Sub-Servicer", and (iii) is responsible for the performance (whether directly
or through sub-servicers or Subcontractors) of Servicing functions that are
required to be performed by the Trust, the Paying Agent, the Master Servicer,
the Special Servicer or any Additional Servicer under this Agreement or any
sub-servicing agreement and are identified in Item 1122(d) of Regulation AB.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d).
"SWAP CONTRACT" means the Class A-2FL Swap Contract, the Class A-MFL
Swap Contract or the Class A-JFL Swap Contract, as applicable.
"SWAP COUNTERPARTY" means Xxxxxx Xxxxxxx Capital Services Inc.,
acting in such capacity or its successor in interest.
"SWAP COUNTERPARTY GUARANTOR" means Xxxxxx Xxxxxxx, a Delaware
corporation.
"SWAP DEFAULT" means (i) any failure on the part of the Swap
Counterparty to make a required payment under the applicable Swap Contract, (ii)
any failure on the part of the Swap Counterparty to post acceptable collateral,
find an acceptable replacement Swap Counterparty or credit support provider or
enter into any other arrangement acceptable to the Rating Agencies after a
Rating Agency Trigger Event, (iii) any failure on the part of the Swap
Counterparty to find an acceptable replacement swap counterparty after the Swap
Counterparty guarantor's long-term rating is reduced below "BBB-" by S&P, or if
it does not have a long-term rating by S&P, its short -term rating is not at
least "A-3" by S&P or (iv) following the occurrence of specified bankruptcy
events with respect to the Swap Counterparty or its guarantor, in each case, as
required by the Schedule to the related ISDA Master Agreement, and any other
event of default set forth in the Swap Contract.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"10-K FILING DEADLINE" has the meaning set forth in Section 13.5.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
80
"THE XXXXX COMPANION LOAN" means, the loan that is secured by the
The Xxxxx Xxxx Passu Mortgage on a pari passu basis with the The Xxxxx Xxxx
Passu Loan and which is not included in the Trust. The Xxxxx Companion Loan is
not a "Mortgage Loan."
"THE XXXXX XXXX PASSU LOAN" means, the Mortgage Loan designated as
Mortgage Loan No. 18 on the Mortgage Loan Schedule and which is secured on a
pari passu basis with The Xxxxx Companion Loan secured by the related Mortgaged
Property pursuant to The Xxxxx Xxxx Passu Mortgage. The Xxxxx Xxxx Passu Loan is
a "Mortgage Loan."
"THE XXXXX MORTGAGE" means, the Mortgage The Xxxxx Companion Loan
and The Xxxxx Xxxx Passu Loan
"TIMBERLAND BUILDINGS A/B MORTGAGE LOAN" means the Timberland
Buildings Mortgage Loan and the Timberland Buildings B Note.
"TIMBERLAND BUILDINGS B NOTE" means, with respect to the Timberland
Buildings Mortgage Loan, the related subordinated B Note not included in the
Trust, which is subordinated in right of payment to the Timberland Buildings
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"TIMBERLAND BUILDINGS MORTGAGE" means the mortgage securing the
Timberland Buildings A/B Mortgage Loan and any other note secured by the related
Mortgaged Property.
"TIMBERLAND BUILDINGS MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 13 on the Mortgage Loan Schedule and which is
senior to the Timberland Buildings B Note and is secured by the related
Mortgaged Property pursuant to the Timberland Buildings Mortgage. The Timberland
Buildings Mortgage Loan is a "Mortgage Loan."
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement and
designated "Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12", the assets which consist
of all the assets of REMIC I (including the Mortgage Loans (other than Excess
Interest), such amounts related thereto as shall from time to time be held in
the Certificate Account, the Distribution Account (other than the portions
thereof constituting the Class A-2FL Floating Rate Account, the Class A-MFL
Floating Rate Account, the Class A-JFL Floating Rate Account and the Excess
Interest Sub-Account), the Reserve Account, the Interest Reserve Account, the
Insurance Policies, any REO Properties or beneficial interests therein and other
items referred to in Section 2.1(a)
81
hereof); REMIC II; REMIC III; the Class A-2FL Swap Contract, the Class A-MFL
Swap Contract, the Class A-JFL Swap Contract and funds or assets from time to
time on deposit in the Class A-2FL Floating Rate Account, the Class A-MFL
Floating Rate Account, the Class A-JFL Floating Rate Account, the Excess
Interest Sub-account and any Excess Interest on the Mortgage Loans. The Trust
shall not include any Non-Serviced Companion Mortgage Loan, any B Note, any
interest of the holders of a B Note, any A/B Loan Custodial Account, any
Serviced Companion Mortgage Loan, any interest of the holders of a Serviced
Companion Mortgage Loan or any Serviced Companion Mortgage Loan Custodial
Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or
its successor-in-interest, or if any successor trustee or any co-trustee shall
be appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month; provided that a portion of the Trustee Fee
agreed upon between the Trustee and the Paying Agent shall be applied to pay the
Paying Agent Fee.
"TRUSTEE FEE RATE" means 0.00115% per annum, which, includes the
Paying Agent Fee.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated and
Bear, Xxxxxxx & Co. Inc. or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to that party by the Trust Fund as
part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of
Section 5.2(a)(II), but that has not been recovered from the Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to
any Class of Interests (including the Class A-2FL Regular Interest, the Class
A-MFL Regular Interest and the Class A-JFL Regular Interest) or Certificates
(other than the Class A-2FL Certificates, the Class A-MFL Certificates, the
Class A-JFL Certificates and the Residual Certificates), the portion of
82
Distributable Certificate Interest for such Class remaining unpaid as of the
close of business on the preceding Distribution Date.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (a) the following electronic files: (i) a Loan Setup File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an REO Status
Report, and (iv) a CMSA Loan Level Reserve/LOC Report.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"WHFIT" means 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" means Treasury Regulations section 1.671-5, as
amended.
"WHMT" means a "Widely Held Mortgage Trust" as that term is defined
in Treasury Regulations section 1.671-5(b)(23) or successor provisions.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set forth in
subsection (II)(i) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y) the amount of
each collection of interest (other than default interest and any Excess
Interest) and principal received (including any Condemnation Proceeds received
and applied as a collection of such interest and principal) on such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
(a) Calculations required to be made by the Paying Agent pursuant
to this Agreement with respect to any Mortgage Loan, Serviced Companion Mortgage
Loan or B Note shall be made based upon current information as to the terms of
such Mortgage Loan, Serviced Companion Mortgage Loan and B Note and reports of
payments received from the Master Servicer on such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note and payments to be made to the Paying Agent
as supplied to the Paying Agent by the Master Servicer. The Paying Agent shall
not be required to recompute, verify or recalculate the information supplied to
it by the Master Servicer and may conclusively rely upon such
83
information in making such calculations. If, however, a Responsible Officer of
the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage
Loan, Serviced Companion Mortgage Loan or B Note documents (or the related
Intercreditor Agreement or related Loan Pair Intercreditor Agreement, as
applicable), or as otherwise provided for in the definition of Liquidation
Realized Loss, any amounts (other than escrow and reserve deposits and
reimbursements of lender advances and expenses) received in respect of a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as to which a
default has occurred and is continuing shall be applied first to overdue
interest due with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note at the Mortgage Rate thereof, next to current interest due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note to zero if such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note has been accelerated
and in respect of any scheduled payments of principal then due to the extent
that such Mortgage Loan, Serviced Companion Mortgage Loan or B Note has not yet
been accelerated, next to any default interest and other amounts due on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note and finally to Late
Fees due with respect to such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note. The foregoing allocations are intended to govern loan level allocations
but shall not govern allocations of such amounts at the trust level for the
purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate (other than the Class A-2FL Certificates, the Class
A-MFL Certificates and the Class A-JFL Certificates), on the Class A-2FL Regular
Interest, on the Class A-MFL Regular Interest and on the Class A-JFL Regular
Interest shall be calculated based upon a 360-day year consisting of twelve
30-day months and, subject to Section 6.12, accrued interest on the Class A-2FL
Certificates, the Class A-MFL Certificates and the Class A-JFL Certificates
shall be calculated on the basis of the actual number of days elapsed in the
related Interest Accrual Period and a 360-day year. Pass-Through Rates shall be
carried out to eight decimal places, rounded if necessary. All dollar amounts
calculated hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
84
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS.
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of
the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal due on the Anticipated Repayment Date as specifically provided for
in the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest on ARD Loans shall constitute an asset of the
Trust but not an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall
take any enforcement action with respect to the payment of Excess Interest on
any Mortgage Loan unless the taking of such action is consistent with the
Servicing Standard and all other amounts due under such Mortgage Loan have been
paid, and, in the good faith and reasonable judgment of the Master Servicer and
the Special Servicer, as the case may be, the Liquidation Proceeds expected to
be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan, after its Anticipated Repayment
Date, the Master Servicer or the Special Servicer, as the case may be, shall be
permitted, in its discretion, to waive in accordance with Section 8.18 hereof,
all or any accrued Excess Interest if, prior to the related Maturity Date, the
related Mortgagor has requested the right to prepay the Mortgage Loan in full
together with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Master Servicer's or the Special Servicer's determination to waive the right
to such accrued Excess Interest is in accordance with the Servicing Standard and
with Section 8.18 hereof. The Master Servicer or the Special Servicer, as the
case may be, will have no liability to the Trust, the Certificateholders or any
other person so long as such determination is based on such criteria.
85
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no longer part of
the Trust Fund or is no longer serviced pursuant to the terms of this Agreement,
the holder of such Serviced Pari Passu Mortgage Loan or B Note, as applicable,
shall negotiate one or more new servicing agreements with the Master Servicer
and the Special Servicer, provided, that prior to entering into any such new
servicing agreement, the new holder of such Serviced Pari Passu Mortgage Loan or
B Note, as applicable, shall obtain and provide to the holder of the related
Serviced Companion Mortgage Loan and/or B Note written confirmation from each
rating agency then rating any securitization relating to such Serviced Companion
Mortgage Loan and/or B Note providing that such new servicing agreement will not
result in the downgrade, qualification or withdrawal of its then-current ratings
of any securities issued in such securitization; provided, that prior to such
time the Master Servicer and the Special Servicer shall continue to service the
related Loan Pair and/or A/B Mortgage Loan to the extent provided in the related
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, as
applicable.
(b) For the avoidance of doubt and subject to subsection (a)
above, the parties acknowledge that the rights and duties of each of the Master
Servicer and the Special Servicer under Article VIII and Article IX and the
obligation of the Master Servicer to make Advances, insofar as such rights,
duties and obligations relate to any A/B Mortgage Loan (including both the
related A Note and the related B Note) or Loan Pair, shall terminate upon the
earliest to occur of the following with respect to such A/B Mortgage Loan or
Loan Pair, as the case may be: (i) any repurchase of or substitution for the
related A Note or Serviced Pari Passu Mortgage Loan by the Seller pursuant to
Section 2.3, (ii) any purchase of the related A Note by the owner of the related
B Note pursuant to the terms of the related Intercreditor Agreement, (iii) any
payment in full of any and all amounts due (or deemed due) under the related A
Note or Serviced Pari Passu Mortgage Loan (or its successor REO Mortgage Loan)
(including amounts to which the holder of such A Note or Serviced Pari Passu
Mortgage Loan is entitled under the related Intercreditor Agreement or related
Loan Pair Intercreditor Agreement), as applicable, (iv) any final liquidation of
such A/B Mortgage Loan or Loan Pair and (v) the occurrence of a Final Recovery
Determination with respect to the related A Note or Serviced Pari Passu Mortgage
Loan; provided, however, that this statement shall not limit (A) the duty of the
Master Servicer or the Special Servicer to deliver or make available the reports
otherwise required of it hereunder with respect to the Collection Period in
which such event occurs or (B) the rights of the Master Servicer or the Special
Servicer that may otherwise accrue or arise in connection with the performance
of its duties hereunder with respect to such A/B Mortgage Loan or Loan Pair
prior to the date on which such event occurs.
(c) In connection with any purchase set forth in clause (ii) of
subsection (b) or an event set forth in clause (iii) of subsection (b), the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall each
tender to (in the case of a purchase under such clause (ii)) the related
purchaser (provided that the related purchaser shall have paid the full amount
of the applicable purchase price) or (in the case of such clause (iii)) to the
holder of the related Serviced Companion Mortgage Loan or B Note (if then still
outstanding), upon delivery to them of a receipt executed by such purchaser or
holder, all portions of the Mortgage File and other
86
documents pertaining to such Loan Pair or A/B Mortgage Loan, as applicable,
possessed by it, and each document that constitutes a part of the Mortgage File
shall be endorsed or assigned to the extent necessary or appropriate to such
purchaser or holder (or the designee of such purchaser or holder) in the same
manner, and pursuant to appropriate forms of assignment, substantially similar
to the manner and forms pursuant to which documents were previously assigned to
the Trustee by the Seller, but in any event, without recourse, representation or
warranty; provided that such tender by the Custodian shall be conditioned upon
its receipt from the Master Servicer of a Request for Release. The Master
Servicer shall, and is also hereby authorized and empowered by the Trustee to,
convey to such purchaser or such holder any deposits then held in an Escrow
Account relating to the applicable A/B Mortgage Loan or Loan Pair. If a Serviced
Pari Passu Mortgage Loan and the related Serviced Companion Mortgage Loan or an
A Note and the related B Note under the applicable Mortgage Loan are then REO
Mortgage Loans, then the Special Servicer shall, and is also hereby authorized
and empowered by the Trustee to, convey to such purchaser or such holder, in
each case, to the extent not needed to pay or reimburse the Master Servicer, the
Special Servicer or the Trustee in accordance with this Agreement, deposits then
held in the REO Account insofar as they relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund or any
REMIC or grantor trust formed hereunder or to any determination respecting the
amount, payment or avoidance of any tax under the REMIC Provisions or provisions
relating to the grantor trust or the actual payment of any REMIC tax or expense
or grantor trust tax or expense with respect to any REMIC or grantor trust
formed hereunder, then such expense shall not be allocated to, deducted or
reimbursed from, or otherwise charged against the holder of any Serviced
Companion Mortgage Loan or B Note and such holder shall not suffer any adverse
consequences as a result of the payment of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with
87
respect to any Non-Serviced Mortgage Loan, (v) with respect to the Class A-2FL
Certificates, the Class A-2FL Swap Contract, the Class A-2FL Regular Interest
and funds or assets from time to time on deposit in the Class A-2FL Floating
Rate Account, (vi) with respect to the Class A-MFL Certificates, the Class A-MFL
Swap Contract, the Class A-MFL Regular Interest and funds or assets from time to
time on deposit in the Class A-MFL Floating Rate Account, (vii) with respect to
the Class A-JFL Certificates, the Class A-JFL Swap Contract, the Class A-JFL
Regular Interest and funds or assets from time to time on deposit in the Class
A-JFL Floating Rate Account, and (viii) all other assets included or to be
included in REMIC I, the Excess Interest Grantor Trust, the Class A-2FL Grantor
Trust, the Class A-MFL Grantor Trust or the Class A-JFL Grantor Trust. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-Off Date. The transfer of
the Mortgage Loans and the related rights and property accomplished hereby is
absolute and is intended by the parties to constitute a sale. In connection with
the initial sale of the Certificates by the Depositor, the purchase price to be
paid includes a portion attributable to interest accruing on the Certificates
from and after the Cut-Off Date. The transfer and assignment of any Non-Serviced
Mortgage Loans to the Trustee and the right to service such Mortgage Loans are
subject to the terms and conditions of the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan
Intercreditor Agreement, and the Trustee, by the execution and delivery of this
Agreement, hereby agrees that such Mortgage Loans remain subject to the terms of
the related Non-Serviced Mortgage Loan Intercreditor Agreement and, with respect
to each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan,
the related Loan Pair Intercreditor Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." The Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Custodian the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Seller
or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The Seller shall, at the expense of such Seller as to each of
its respective Mortgage Loans, promptly (and in any event within 45 days
following the receipt thereof) cause to be submitted for recording or filing
(except with respect to any Mortgage that has been recorded in the name of MERS
or its designees), as the case may be, in the appropriate public office for real
property records or UCC financing statements, as appropriate, each assignment to
the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition
of "Mortgage File;" provided, if the related Mortgage and UCC financing
statements have been recorded in the name of MERS or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, the Seller has agreed in the applicable Mortgage Loan Purchase
Agreement to take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of
88
mortgages maintained by MERS. Each such assignment shall reflect that it should
be returned by the public recording office to the Custodian following recording
or filing; provided that in those instances where the public recording office
retains the original Assignment of Mortgage, assignment of Assignment of Leases
or assignment of UCC financing statements, the Seller shall obtain therefrom a
certified copy of the recorded original. The Seller shall forward copies thereof
to the Trustee, the Custodian and the Special Servicer and, if recorded in the
name of MERS, shall deliver to the Master Servicer and the Special Servicer,
within 45 days of the Closing Date, evidence confirming that the Trustee is
shown as the owner on the record of MERS. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall, pursuant to the applicable Mortgage Loan Purchase
Agreement, promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Seller shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate.
After the Seller has caused the Trustee to be identified on the records of MERS
as the owner of a Mortgage, it shall be the sole responsibility of the Master
Servicer to ensure that subsequent relevant events relating to the Mortgage (as,
for example, assumptions and partial releases) are promptly and properly
registered with MERS throughout the term of the related Mortgage Loan for so
long as the Mortgage Loan is an asset of the Trust.
The parties acknowledge the obligation of the Seller pursuant to
Section 2 of the Mortgage Loan Purchase Agreement to deliver to the Trustee, on
or before the fifth Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached as Exhibit C to the applicable
Primary Servicing Agreement in favor of the Trustee and the Special Servicer to
empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as set forth in the
preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Custodian). The
Sellers agree to reasonably cooperate with the Trustee, the Custodian and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document set forth in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Custodian shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Custodian shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that it is awaiting its
return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Seller that relate to the Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master Servicer or the applicable Primary Servicer on its
behalf, on or before the date that is 45 days following the Closing Date and
shall be held by the Master Servicer or the applicable Primary Servicer on
behalf of the Trustee in trust for the
89
benefit of the Certificateholders. To the extent delivered to the Master
Servicer or the applicable Primary Servicer by the Seller, the Servicer Mortgage
File, will include, to the extent required to be (and actually) delivered to the
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, the insurance policies or certificates (as applicable), the property
inspection reports, any financial statements on the property, any escrow
analysis, the tax bills, the Appraisal, the environmental report, the
engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, the Seller shall not be required to deliver any draft documents, or
any attorney-client communications that are privileged communications or
constitute legal or other due diligence analyses, or internal communications of
the Seller or its affiliates, or credit underwriting or other analyses or data.
Delivery of any of the foregoing documents to the applicable Primary Servicer
(or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy
the Depositor's obligations under this Section 2.1(d). None of the Master
Servicer, the Special Servicer or the applicable Primary Servicer shall have any
liability for the absence of any of the foregoing items from the Servicing
Mortgage File if such item was not delivered by the Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before
the Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Seller with respect to each related Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMCH
Loans from MSMCH. The Depositor will deliver or cause to be delivered the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as set forth in the definition of "Mortgage File") relating to
the MSMCH Loans to the Custodian, endorsed as otherwise provided herein, to
effect the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. To avoid the unnecessary expense
and administrative inconvenience associated with the execution and recording of
multiple assignment documents, MSMCH is required under the Mortgage Loan
Purchase Agreement to deliver Assignments of Mortgages and assignments of
Assignments of Leases and assignments of UCC financing statements naming the
Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the
fact that the assignments shall name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the MSMCH Loans shall be deemed to have been transferred
from MSMCH to the Depositor and all Mortgage Loans shall be deemed to have been
transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE AND CUSTODIAN. The Trustee will
hold (i) the REMIC I Regular Interests and (ii) the REMIC II Regular Interests,
in each case, in trust for the exclusive use and benefit of all present and
future Certificateholders (other than Holders of the Class R-I and Class T
Certificates) and the Custodian will hold the documents constituting a part of
the Mortgage Files delivered to it in trust for the exclusive use and benefit of
all present and future Certificateholders, and the Class A-2FL Regular Interest,
the Class A-MFL Regular
90
Interest and the Class A-JFL Regular Interest for the use and benefit of all
present and future Holders of the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates, respectively. To the extent that
the contents of the Mortgage File for any A Note relate to the corresponding B
Note, the Trustee, or the Custodian on the Trustee's behalf, will also hold such
Mortgage File in trust for the benefit of the holder of the related B Note;
provided, that if a B Note remains outstanding following payment in full of the
amounts due under the related A Notes, the Mortgage Loan documents relating to
such A/B Mortgage Loan (exclusive of any such documents related solely to the A
Notes) shall be assigned to the holder of the B Note or its designee. To the
extent that the contents of the Mortgage File for any Serviced Pari Passu
Mortgage Loan relate to the corresponding Serviced Companion Mortgage Loan, the
Trustee, or the Custodian, on the Trustee's behalf, will also hold such Mortgage
File in trust for the benefit of the holder of the related Serviced Companion
Mortgage Loan.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Custodian shall examine the Mortgage Files in its possession, and shall deliver
to the Depositor, the Trustee, the Seller, the Master Servicer, the Special
Servicer, the Operating Adviser and the holder of any Serviced Companion
Mortgage Loan a certification (the "Initial Certification" and the "Final
Certification", respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto), which shall be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions attached
thereto, to the effect that: (A) all documents pursuant to clause (i) of the
definition of "Mortgage File" are in its possession, (B) such documents have
been reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of
the definition of "Mortgage File", and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions attached thereto, to
the effect that: (A) (I) all documents pursuant to clauses (i), (ii), (iv), (v),
(vi), (viii), (x) and (xii) of the definition of "Mortgage File" required to be
included in the Mortgage File (to the extent required to be delivered pursuant
to this Agreement and the applicable Primary Servicing Agreement), and with
respect to all documents specified in the other clauses of the definition of
"Mortgage File" to the extent known by a Responsible Officer of the Custodian to
be required pursuant to this Agreement, are in its possession, and (II) for each
Mortgage recorded in the name of MERS or its designee, the Trustee is shown as
the transferee of the related Mortgage on the records of MERS for purposes of
the system maintained by MERS of recording transfers of beneficial ownership for
mortgages, (B) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (C) based on its examination
and only as to the Mortgage Note and Mortgage, the street address of the
Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed. Notwithstanding
the foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Material Document Defect with respect to any Mortgage File if such
actual Title Insurance Policy is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date.
91
Within 360 days after the Cut-Off Date, the Custodian shall provide
a confirmation of receipt of recorded assignments of Mortgage (as set forth in
the definition of "Mortgage File," with evidence of recording thereon) or
otherwise provide evidence of such recordation to the Trustee, the Master
Servicer, the Special Servicer, the Operating Adviser and the Seller, and if any
recorded assignment of Mortgage has not been received by the Custodian by such
time, the Custodian shall provide information in such confirmation on the status
of missing assignments. The Custodian agrees to use reasonable efforts to submit
for recording any unrecorded assignments of Mortgage that have been delivered to
it (including effecting such recordation process through or cooperating with the
Seller), such recordation to be at the expense of the Seller; provided, however,
that the Custodian shall not submit for recording any such assignments if the
Seller produces evidence that it has sent any such assignment for recording and
is awaiting its return from the applicable recording office. In giving the
certifications required above, the Custodian shall be under no obligation or
duty to inspect, review or examine any such documents, instruments, securities
or other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty,
written assurance, substitution agreement, lock box agreement, intercreditor
agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian of the particular documents showing evidence of the
recordation and/or filing), then the Custodian on behalf of the Trustee shall
continuously update such schedule of exceptions to reflect receipt of any
corrected documents, additional documents or instruments or evidences of
recordation and/or filing, as to each Mortgage Loan, until the earliest of the
following dates: (i) the date on which all such exceptions are eliminated (any
such elimination resulting from the fact that recordation and/or filing has been
completed shall be based solely on receipt by the Custodian or the Trustee of
the particular documents showing evidence of the recordation and/or filing),
(ii) the date on which all the affected Mortgage Loans are removed from the
Trust and (iii) the second anniversary of the Closing Date, and shall provide
such updated schedule of exceptions (which may be in electronic format) to each
of the Depositor, the Seller (as to its Mortgage Loans only), the Master
Servicer, the Special Servicer, the Operating Adviser, the Paying Agent and the
holder of any Serviced Companion Mortgage Loan on or about the date that is 180
days after the Closing Date and then again every 90 days thereafter (until the
earliest date specified above). Upon request, the Paying Agent shall promptly
forward a copy thereof to each Certificateholder in the Controlling Class and
shall deliver or make available a copy thereof to other Certificateholders.
Promptly, and in any event within two Business Days, following any request
therefor by the Depositor, the Master Servicer, the Special Servicer, the
Operating Adviser or the holder of any Serviced Companion Mortgage Loan that is
made later than two years following the Closing Date, the Custodian (or the
Trustee) shall deliver an updated schedule of exceptions, which may be in
electronic format (to the extent the prior schedule showed exceptions), to the
requesting Person and the Paying Agent, which shall make available a copy
thereof. Upon request, the Master Servicer shall provide to the Trustee the
names and addresses of each holder of a Serviced Companion Mortgage Loan of
which the Master Servicer has received notice in accordance with this Agreement
and/or the related Loan Pair Intercreditor Agreement.
92
The Custodian or its authorized agents shall retain possession and
custody of each Custodian Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLER'S REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the Mortgage Loan Purchase Agreement, and, in either
case, the party discovering such defect or breach determines that either (i) the
defect or breach materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan or (ii) both (A) the defect or
breach materially and adversely affects the value of the Mortgage Loan and (B)
the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (any such defect set forth in the preceding clause (i) or (ii), a
"Material Document Defect", and such a breach set forth in the preceding clause
(i) or (ii), a "Material Breach") the party determining that such Material
Document Defect or Material Breach exists shall give prompt written notice to
the other parties hereto and to each Rating Agency subject to the terms of the
applicable Mortgage Loan Purchase Agreement; provided that any breach of the
representation and warranty contained in paragraph 42 of such Exhibit 2 of the
Mortgage Loan Purchase Agreement shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon determining (or becoming aware of another party's determination) that
any such Material Document Defect or Material Breach exists, the Master Servicer
shall, and the Special Servicer may, request that the Seller, not later than 90
days from such Seller's receipt of the notice of such Material Document Defect
or Material Breach, cure such Material Document Defect or Material Breach, as
the case may be, in all material respects; provided, however, that if such
Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but the Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days unless, solely in the case of
a Material Document Defect, (x) the Mortgage Loan is, at the end of the initial
90 day period, a Specially Serviced Mortgage Loan and a Servicing Transfer Event
has occurred as a result of a monetary default or as set forth in clause (ii) or
clause (v) of the definition of "Servicing Transfer Event" and (y) the Material
Document Defect was identified in a certification delivered to the Seller by the
Trustee pursuant to Section 2.2 not less than 90 days prior to the delivery of
the notice of such Material Document Defect. The parties acknowledge that
neither delivery of a certification or schedule of exceptions to a Seller
pursuant to Section 2.2 or otherwise nor possession of such certification or
schedule by the Seller shall, in and of itself, constitute delivery of notice of
any Material Document Defect or knowledge or awareness by the Seller or any
party hereto of any Material Document Defect listed therein.
93
If any Material Document Defect or Material Breach that exists
cannot be corrected or cured in all material respects within the above cure
periods, the Seller will be obligated, not later than the last day of such
permitted cure period, to (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from the Trust at the applicable Purchase Price in accordance with
the Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section 1.860G-2(f)), at the Seller's option, without recourse (other than the
representations and warranties made with respect thereto), replace such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material Document Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, the repurchase must occur
within 85 days from the date the Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
Seller was notified of the defect or (ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
Seller has delivered to the Custodian for such Qualifying Substitute Mortgage
Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment of
Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1, and the Master
Servicer shall be entitled to rely on statements and certifications from the
Custodian for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the Seller on the next succeeding Distribution Date. For the
month of substitution, distributions to Certificateholders will include the
Scheduled Payment due on the related Deleted Mortgage Loan for such month and
thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee (and the Custodian), the Paying
Agent and the Special Servicer. Upon such substitution, the Qualifying
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects. Upon receipt of the Custodian Mortgage File
pertaining to any Qualifying Substitute Mortgage Loans, the Custodian shall
release the Custodian Mortgage File relating to such Deleted Mortgage Loan to
the Seller, and the Custodian (and the Depositor, if necessary) shall execute
and deliver such instruments of transfer or assignment in the form presented to
it, in each case without recourse, representation or warranty, as shall be
necessary to vest title (provided, however, if applicable, the Master Servicer
will take all necessary action to register the transfer of ownership of the
Mortgage related to such Deleted Mortgage Loan on the records of MERS) (to the
extent that such title was transferred to the Trustee or the Depositor) in the
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
94
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such Crossed Mortgage Loans (without regard to this
paragraph), then the applicable document defect or breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Crossed Mortgage Loan for purposes of the above
provisions, and the Seller shall be obligated to repurchase or replace each such
Crossed Mortgage Loan in accordance with the provisions above unless, in the
case of such breach or document defect, the Seller (A) provides a
Nondisqualification Opinion to the Trustee at the expense of the Seller and (B)
both of the following conditions would be satisfied if the Seller were to
repurchase or replace only those Mortgage Loans as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph (the
"Affected Loan(s)"): (i) the Debt Service Coverage Ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than the greater
of (A) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (B) 1.25x, and (ii) the
Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (A) the current Loan-to-Value ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth
under the heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus
Supplement and (y) 75%. The determination of the Master Servicer as to whether
the conditions set forth above have been satisfied shall be conclusive and
binding in the absence of manifest error. The Master Servicer will be entitled
to cause to be delivered, or direct the Seller to (in which case the Seller
shall) cause to be delivered to the Master Servicer: (A) an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of the Seller if the scope and cost of the Appraisal is approved by the
Seller (such approval not to be unreasonably withheld) and (B) an Opinion of
Counsel that not requiring the repurchase of each such other Mortgage Loan will
not result in an Adverse REMIC Event.
With respect to any Defective Mortgage Loan, to the extent that the
Seller is required to repurchase or substitute for such Defective Mortgage Loan
(each, a "Repurchased Loan") in the manner prescribed above while the Trustee
continues to hold any Crossed Mortgage Loan that is cross-collateralized and/or
cross-defaulted (each, a "Cross-Collateralized Loan") with such Repurchased
Loan, the Seller and the Depositor have agreed in the Mortgage Loan Purchase
Agreement to modify, prior to such repurchase or substitution, the related
Mortgage Loan documents in a manner such that such affected Repurchased Loan, on
the one hand, and any related Cross-Collateralized Loans held by Trustee, on the
other, would no longer be cross-defaulted or cross-collateralized with one
another; provided that the Seller shall have furnished the Trustee, at the
expense of such Seller, an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event; provided, further, that if such Opinion of Counsel
cannot be furnished, the Seller and the Depositor have agreed in the applicable
Mortgage Loan Purchase Agreement that such repurchase or substitution of only
the Repurchased Loan, notwithstanding anything to the contrary herein, shall not
be permitted and the Seller shall repurchase or substitute for the Repurchased
Loan and all related Cross-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-
95
Collateralized Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Principal Balances. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
The Mortgagors set forth on Schedule VIII hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof)
that appears to be regular on its face, unless there is included in the Mortgage
File a certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; (c) the absence from the Mortgage File of the item called
for by paragraph (viii) of the definition of "Mortgage File" (or with respect to
any Non-Serviced Mortgage Loan, a copy thereof); or (d) the absence from the
Mortgage File of the item called for by paragraph (xii) of the definition of
"Mortgage File" (or with respect to any Non-Serviced Mortgage Loan, a copy
thereof). If any of the foregoing Material Document Defects is discovered by the
Custodian (or the Trustee if there is no Custodian), the Trustee (or as set
forth in Section 2.3(a), the Master Servicer) will take the steps set forth
elsewhere in this section, including the giving of notices to the Rating
Agencies, the parties hereto and, to the extent any Material Document Defect
relates to a Serviced Pari Passu Mortgage Loan, the holder of the related
Serviced Companion Mortgage Loan, and making demand upon the Seller for the cure
of the document defect or repurchase or replacement of the related Mortgage
Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the affected Mortgage Loan from the Trust or (iii) to replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance
with the Mortgage Loan Purchase Agreement, then provided that (x) the period of
time provided for the Seller to correct, repurchase or cure has expired and (y)
the Mortgage Loan is then in default and is then a Specially Serviced Mortgage
Loan, the Special Servicer may, subject to the Servicing Standard, modify,
workout or foreclose, sell or otherwise liquidate (or permit the liquidation of)
the Mortgage Loan pursuant to Section 8.18, Section 9.12, Section 9.15 and
Section 9.36, as applicable, hereof, while pursuing the repurchase claim. The
Seller has acknowledged and agreed under the Mortgage Loan Purchase Agreement
that any modification of the Mortgage Loan pursuant to a workout shall not
constitute a defense to any repurchase claim nor shall such modification and
workout change the Purchase Price due from the Seller for any repurchase claim.
Any sale of the related Mortgage Loan, or foreclosure upon such Mortgage Loan
and sale of the related REO Property, to a Person other than the Seller shall be
without (i) recourse of any kind (either expressed or implied) by such Person
against the Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or
96
Mortgage Loan) shall not prejudice any claim against the Seller for repurchase
of the REO Mortgage Loan or REO Property. In such an event, the Master Servicer
shall notify the Seller of the discovery of the Material Document Defect or
Material Breach and the Seller shall have 90 days to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. After a final liquidation of the Mortgage Loan or REO Mortgage
Loan, if a court of competent jurisdiction issues a final order after the
expiration of any applicable appeal period that the Seller is or was obligated
to repurchase the related Mortgage Loan or REO Mortgage Loan (a "Final Judicial
Determination") or the Seller otherwise accepts liability, then, but in no event
later than the termination of the Trust pursuant to Section 9.30 hereof, the
Seller will be obligated to pay to the Trust the difference between any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the Seller) and the Purchase Price.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer will determine the amount (if any) by which the aggregate Principal
Balance of all such Qualifying Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Principal Balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the Seller to deposit the amount of such shortage into the Certificate
Account in the month of substitution, without any reimbursement thereof. In
addition, the Depositor shall cause the Seller to deposit into the Certificate
Account, together with such shortage, if any, an amount equal to interest on the
Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage
Rate from the Due Date as to which interest was last paid up to the Due Date
next succeeding such substitution together with the amount of unreimbursed
Servicing Advances, amounts required to be paid to the Special Servicer but
remaining unpaid or unreimbursed, and interest on unreimbursed Advances with
respect to such Deleted Mortgage Loans at the Advance Rate. The Depositor shall
cause the Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee, the Paying Agent and the Master Servicer of such event which
notice shall be accompanied by an Officer's Certificate as to the calculation of
such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Custodian, the Trustee, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by such Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the Seller or its
designee in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee, but in any event, without recourse,
representation or warranty; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release.
The Master Servicer shall, and is hereby authorized and empowered by the Trustee
to, prepare,
97
execute and deliver in its own name, on behalf of the Certificateholders and the
Trustee or any of them, the endorsements and assignments contemplated by this
Section 2.3, and the Trustee shall execute and deliver any powers of attorney
necessary to permit the Master Servicer to do so. The Master Servicer shall, and
is also hereby authorized and empowered by the Trustee to, reconvey to the
Seller any deposits then held in an Escrow Account relating to the Mortgage Loan
being repurchased or substituted for. The Master Servicer shall indemnify the
Trustee for all costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with any negligent or intentional misuse
of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that MSMCH, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the MSMCH
Loans.
(d) The Trustee or its designee (which, with the Master Servicer's
consent, may be the Master Servicer or which, with the Special Servicer's
consent, may be the Special Servicer) shall enforce the provisions of this
Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust) and the Paying Agent as of the
Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other
98
action in respect of, any state, federal or other governmental authority or
agency, except such as has been obtained, given, effected or taken prior to the
date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing
Date, the Depositor does hereby transfer, assign, set over, deposit with and
otherwise convey to the Trustee, without recourse, in trust, all the right,
title and interest of the Depositor in and to (i) the assets of REMIC I in
exchange for the REMIC I Interests, (ii) the REMIC I Regular Interests in
exchange for the REMIC II Interests, (iii) the REMIC II Regular Interests in
exchange for the REMIC III Certificates, the Class A-2FL Regular Interest, the
Class A-MFL Regular Interest and the Class A-JFL Regular Interest, (iv) the
Class A-2FL Regular Interest and the Class A-2FL Swap Contract in exchange for
the Class A-2FL Certificates, (v) the Class A-MFL Regular Interest and the Class
A-MFL Swap Contract in exchange for the Class A-MFL Certificates, (vi) the Class
A-JFL Regular Interest and the Class A-JFL Swap Contract in exchange for the
Class A-JFL Certificates, and (vii) the right to receive Excess Interest on the
ARD Loans in exchange for the Class T Certificates.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE
LOANS.
(a) Notwithstanding anything to the contrary in this Agreement,
with respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of
the document delivery requirements set forth herein will be satisfied by the
delivery by the Seller of copies of each such document specified herein (other
than the Mortgage Note (and all intervening endorsements) evidencing the
Mortgage Loan, with respect to which the originals shall be required); provided,
the document delivery requirements for the Assignment of Mortgage, any
assignment of Assignment of Leases and any UCC-2 or UCC-3 financing statement
set forth herein will be satisfied by the delivery by the Seller of copies of
such documents made in favor of the trustee of the Non-Serviced Mortgage Loan
Pooling and Servicing Agreement.
99
(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the respective master
servicer, special servicer and trustee for the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and the other holders of the related
Non-Serviced Companion Loans, each stating that, among other things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the Closing Date.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth
in the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates, the Class A-M Certificates,
the Class A-MFL Certificates, the Class A-J Certificates and the Class A-JFL
Certificates will be issuable in denominations of $25,000 initial Certificate
Balance and in any whole dollar denomination in excess thereof. The Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates will be
issuable in denominations of $100,000 initial Certificate Balance or initial
Notional Amount (as applicable) or in any whole dollar denomination in excess
thereof. The Class X Certificates will be issuable in denominations of $100,000
initial Notional Amount or in any whole dollar denomination in excess thereof.
The Class T, Class R-I, Class R-II and Class R-III Certificates will be issued
in minimum Percentage Interests of 10% and integral multiples of 10% in excess
thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All
100
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates to the Authenticating Agent for
authentication and the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise. In the event that
additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to the Class A Senior, Class X, Class A-M, Class
A-MFL, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates that are issued in book-entry form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class S Certificates that are issued in definitive form,
on the Closing Date, the Authenticating Agent upon the order of the Depositor
shall authenticate Definitive Certificates that are issued to the registered
holder thereof against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the Corporate Trust
Office, duly endorsed or accompanied by a written instrument of transfer duly
executed by such Holder or such Holder's duly authorized attorney in such form
as shall be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
101
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Non-Registered Certificate that constitutes a Book-Entry Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest in
such Non-Registered Certificate by the Depositor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto or as
Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act. None of the
Depositor, the Paying Agent, the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar is obligated to register or qualify any
Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Certificate. Any Certificateholder or Certificate
Owner desiring to effect a transfer of Non-Registered Certificates or interests
therein shall, and does hereby agree to, indemnify the Depositor, each
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the Paying
Agent and the Certificate Registrar against any
102
liability that may result if the transfer is not exempt from such registration
or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer or the Certificate Registrar to
any obligation in addition to those undertaken in this Agreement. Each Person
who acquires any Non-Investment Grade Certificate or Residual Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless, in the case of a
Non-Investment Grade Certificate, it shall have delivered to the Certificate
Registrar the certification of facts and Opinion of Counsel referred to in
clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Non-Investment Grade
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) that, in the case of a
Non-Investment Grade Certificate, the purchase and holding of such Certificate
or interest therein by such person qualifies for the exemptive relief available
under Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor or similar
exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
103
(A) (1) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted Transferee
and a United States Tax Person other than 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 any person that is not a
United Stated Tax Person, and shall promptly notify the Certificate
Registrar of any change or impending change in its status as a
Permitted Transferee and (2) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Qualified
Institutional Buyer and shall promptly notify the Certificate
Registrar of any change or impending change in its status as a
Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially in the
form attached hereto as Exhibit E-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is a Qualified Institutional Buyer, that it is
not acquiring its Ownership Interest in the Residual Certificate
that is the subject of the proposed Transfer as a nominee, trustee
or agent for any Person that is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted Transferee, that
it is a United States Tax Person other than 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 any person that is not a
United Stated Tax Person, that if such Transferee is a partnership,
trust or disregarded entity for U.S. federal income tax purposes,
then each Person that may be allocated income from a Residual
Certificate is a United States Tax Person, that it is not a foreign
permanent establishment or fixed base, within the meaning of any
applicable income tax treaty, of any United States Tax Person, that
it has historically paid its debts as they have come due and will
continue to do so in the future, that it understands that its tax
liability with respect to the Residual Certificates may exceed cash
flows thereon and it intends to pay such taxes as they come due,
that it will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax
treaty, of such proposed Transferee or any other United States Tax
Person, that it will provide the Certificate Registrar with all
information necessary to determine that the applicable paragraphs of
Section 13 of such Transfer Affidavit and Agreement are true or that
Section 13 is not applicable, and that it has reviewed the
provisions of this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted
104
Transferee or is not a United States Tax Person, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
E-2 among other things stating that (x) it has conducted a
reasonable investigation of the financial condition of the proposed
Transferee and, as a result of the investigation, the Transferor
determines that the proposed Transferee had historically paid its
debts as they came due and found no significant evidence that the
proposed Transferee will not continue to pay its debts as they come
due in the future and, (y) it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee, is not a
United States Tax Person or 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 any person that is not a United
Stated Tax Person, is a foreign permanent establishment or fixed
base, within the meaning of any applicable income tax treaty, of any
United States Tax Person or is a Person with respect to which income
on the Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of any applicable
income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate that is a "pass-through interest holder"
within the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a
Residual Certificate on behalf of a "pass-through interest holder",
by purchasing an Ownership Interest in such Certificate, agrees to
give the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer, the Special Servicer, the
Certificate Registrar or the Paying Agent shall be under any
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section
3.3(e) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
105
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 3.3(e), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Tax
Person, and to the extent that the retroactive restoration of the
rights and obligations of the prior Holder of such Residual
Certificate as set forth in clause (F) above shall be invalid,
illegal or unenforceable, then the Trustee shall have the right,
without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell or cause to be sold
such Residual Certificate to a purchaser selected by the Trustee on
such terms as the Trustee may choose. Such noncomplying Holder shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such purchaser
may be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Certificate Registrar to such
noncomplying Holder. The terms and conditions of any sale under this
clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information set forth 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 and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
set forth in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the
effect that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC Pool to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which
is
106
not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer
of a Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall
be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicer,
the Special Servicer and the Depositor, upon written request, with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(A) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and
107
(B) except in the case of a mutilated Certificate so surrendered, there is
delivered to the Certificate Registrar such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Certificate Registrar shall execute, and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Trustee, the Operating Adviser, the Paying Agent and any agent of
the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or the
Operating Adviser may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Operating Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding
all the Certificates of any Class of Certificates, the Master Servicer, the
Special Servicer, the Paying Agent, the Trustee, the Operating Adviser or the
Depositor (A) request in writing from the Certificate Registrar a list of the
names and addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee, the Swap Counterparty or the Operating Adviser, as applicable, access
during normal business hours to a current list of the Certificateholders. The
expense of providing any such information requested by such Person shall be
borne by the party requesting such information and shall not be borne by the
Certificate Registrar or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Certificate Registrar and the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-1A, Class A-2, Class A-2FL, Class A-3,
Class X-0, Xxxxx X-0, Class A-M, Class A-MFL, Class A-J, Class A-JFL, Class X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates,
upon original issuance, each shall be issued in the form of one or more
Certificates representing the Book-Entry Certificates, to be delivered to the
108
Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided, that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors that are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full
force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent,
the Certificate Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class E, Class F, Class G and Class H Certificates sold to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q and Class S Certificates initially sold to
Institutional Accredited Investors that are not Qualified Institutional Buyers
shall be represented by IAI Definitive Certificates for such Class. The
Certificates evidenced by any Rule 144A-IAI Global Certificate or IAI Definitive
Certificate shall be subject to certain restrictions on transfer as set forth in
Section 3.3 hereof and shall bear legend(s) regarding such restrictions set
forth herein.
109
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear Bank or Clearstream Bank; provided, however, that
such interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification requirements
described in Section 3.7(f). The Regulation S Permanent Global Certificates
shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear Bank or Clearstream Bank (as applicable) a Regulation S
Certificate; provided, however, that any Certificate Owner that holds a
beneficial interest in a Regulation S Temporary Global Certificate on the
Release Date or on any such Distribution Date that has previously delivered a
Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to
its interest therein does not need to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, and such Certificate Owner must promptly notify Euroclear
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, as applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Certificate Registrar receiving such certification from Euroclear Bank or
Clearstream Bank with respect to the portion of the Regulation S Temporary
Global Certificate owned by such Certificate Owner (and, with respect to an
interest in the applicable Regulation S Permanent Global Certificate, prior to
the Release Date). After the Release Date, distributions due with respect to any
beneficial interest in a Regulation S Temporary Global Certificate shall not be
made to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global Certificate is
improperly withheld or refused. No interest in a Regulation S Global Certificate
may be held by or transferred to a U.S. Person (as defined in Regulation S)
except for exchanges for a beneficial interest in the Rule 144A-IAI Global
Certificate for such Class as set forth in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and the Placement
110
Agent. Ownership of beneficial interests in a Global Certificate shall be
limited to Customers or Persons who hold interests directly or indirectly
through Customers. Ownership of beneficial interests in the Global Certificates
shall be shown on, and the transfer of that ownership shall be effected only
through, records maintained by the Depository or its nominee (with respect to
interests of Customers) and the records of Customers (with respect to interests
of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the
form of an Exchange Certification (substantially in the form of Exhibit H
attached hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as set forth herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable,
in the form of an Exchange Certification, to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for an
equivalent interest in the Regulation S Global Certificate for such Class in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in such Regulation S Global Certificate as set
forth herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
111
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicer in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided, that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
112
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the Master Servicer and, if the Master Servicer does not make such Advances,
by the Trustee except to the extent that the Master Servicer or the Trustee, as
applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer
shall notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance in respect of each Mortgage Loan of such amount no later than the Master
Servicer Remittance Date. It is understood that the obligation of the Master
Servicer to make such P&I Advances is mandatory and shall apply through any
court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy, notwithstanding any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the Master Servicer
determines, in accordance with Section 4.4 below, that any such P&I Advance
would be a Nonrecoverable Advance and shall not make such P&I Advance if such
P&I Advance if made would be a Nonrecoverable Advance as determined by the
Special Servicer in accordance with the Servicing Standard, and the Special
Servicer has notified the Master Servicer of such determination not later than
24 hours (and on a Business Day) prior to the date on which the Master Servicer
would be required to make such P&I Advance. Such determination shall be
conclusive and binding on the Trustee and the Certificateholders. The Master
Servicer shall not advance any amount due to be paid by the Swap Counterparty
for distribution to the Class A-2FL Certificates, the Class A-MFL Certificates
or the Class A-JFL Certificates in the event that the Swap Counterparty fails to
make a required payment under the related Swap Contract. The Special Servicer
shall not make P&I Advances under this Agreement and shall not advance any
amount due to be paid by the Swap Counterparty for distribution to the Class
A-2FL Certificates, the Class A-MFL Certificates or the Class A-JFL Certificates
in the event that the Swap Counterparty fails to make a required payment under
the related Swap Contract. If the Master Servicer fails to make a P&I Advance
that it is required to make under this Section 4.1, it shall promptly notify the
Trustee and the Paying Agent of such failure.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the related Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. Any
funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the Certificate Account on
such Master Servicer Remittance Date shall be less than payments to the Paying
Agent or other Persons required to be made on such date.
113
SECTION 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE
LOANS AND SERVICED PARI PASSU MORTGAGE LOANS.
With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the Master Servicer (and, if
it exercises its right to make a nonrecoverability determination, the Special
Servicer) shall make its determination that a P&I Advance previously made on any
P&I Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance with respect to such
P&I Pari Passu Loan in accordance with Section 4.1 independently of any
determination made by any Other Master Servicer under the related Other
Companion Loan Pooling and Servicing Agreement in respect of any P&I Pari Passu
Loan following deposit of the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans into a commercial mortgage securitization trust, and
the Other Master Servicer shall make its own determination that it has made a
P&I Advance that is a Nonrecoverable Advance (both as defined in the related
Other Companion Loan Pooling and Servicing Agreement) or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance (both as defined in
the related Other Companion Loan Pooling and Servicing Agreement) with respect
to the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage
Loans, as applicable, in accordance with the related Other Companion Loan
Pooling and Servicing Agreement. The determination by either the Master Servicer
or the Other Master Servicer made on the earlier of (i) the Advance Report Date
and (ii) the Other Advance Report Date that any such P&I Advance is
nonrecoverable shall be binding on the Other Master Servicer and the Master
Servicer, as applicable, the Certificateholders and the holders of any
securities relating to the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans, as applicable.
The Master Servicer shall not make a P&I Advance with respect to any
P&I Pari Passu Loan after its receipt of notice from the related Other Master
Servicer that it has determined that it has made a P&I Advance that is a
Nonrecoverable Advance on the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans, as applicable, or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable Advance pursuant to the relevant Other
Companion Loan Pooling and Servicing Agreement. If the Master Servicer
determines that a P&I Advance would be (if made), or any outstanding P&I Advance
previously made is, a Nonrecoverable Advance, the Master Servicer shall provide
the Other Master Servicer written notice of such determination within two
Business Days after such determination was made. If the Master Servicer receives
written notice by the Other Master Servicer that it has determined, with respect
to any Mortgage Loan, that any proposed future P&I Advance would be, or any
outstanding P&I Advance is, a Nonrecoverable Advance, the Master Servicer shall
not make any additional P&I Advances with respect to such Mortgage Loan unless
the Master Servicer has consulted with the Other Master Servicer and they both
agree that circumstances with respect to such Mortgage Loan have changed such
that a proposed future P&I Advance would not be a Nonrecoverable Advance.
Notwithstanding the foregoing, the Master Servicer shall continue to have the
discretion provided in this Agreement to determine that any future P&I Advance
or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable
Advance. Once such a determination is made by the Master Servicer or the Master
Servicer receives written notice of such determination by the Other Master
Servicer, the Master Servicer shall follow the process set forth in this
paragraph before making any additional P&I Advances with respect to such
Mortgage Loan.
114
Following a securitization of a Serviced Companion Mortgage Loan,
the Master Servicer shall be required to deliver to the related Other Master
Servicer the following information: (i) any loan related information (in the
form received), including without limitation CMSA Reports relating to the
related Serviced Pari Passu Mortgage Loan, applicable to a determination that an
Advance is or would be a Nonrecoverable Advance, within one Business Day of the
Master Servicer's receipt thereof, (ii) notice of any Servicing Advance it, or
the Trustee makes with respect to the related Serviced Pari Passu Mortgage Loan
within one Business Day of the making of such Advance and (iii) notice of any
determination that any Servicing Advance is a Nonrecoverable Advance within one
Business Day thereof.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the
Master Servicer does not, the Trustee to the extent the Trustee receives written
notice from the Paying Agent that such Advance has not been made by the Master
Servicer, shall make Servicing Advances to the extent provided in this
Agreement, except to the extent that the Master Servicer or the Trustee, as
applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance and, subject to the last sentence of
this Section 4.2, except to the extent the Special Servicer determines in
accordance with the Servicing Standard and Section 4.4 that such Advance, if
made, would be a Nonrecoverable Advance, in which event the Special Servicer
shall promptly direct the Master Servicer not to make such Advance. Such
determination by the Master Servicer or the Special Servicer shall be conclusive
and binding on the Trustee and the Certificateholders and, in the case of any B
Note, the holder of the related B Note and, in the case of any Serviced Pari
Passu Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan.
The Special Servicer shall not be required to make Servicing Advances under this
Agreement but may make such Servicing Advances at its option in which event the
Master Servicer shall reimburse the Special Servicer for such Servicing Advance
within 1 Business Day days of receipt of a statement therefor. The Special
Servicer shall promptly notify the Master Servicer that a Servicing Advance is
required in connection with a Specially Serviced Mortgage Loan or REO Property,
and the Master Servicer shall make such Servicing Advance within 5 Business Days
of receipt of such notice (or such shorter period as may be required to avoid a
foreclosure of liens for delinquent real estate taxes or a lapse in insurance
coverage). In addition, the Special Servicer shall provide the Master Servicer
or the Trustee with such information in its possession as the Master Servicer or
the Trustee 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 relay on such determination; provided, that the determination shall
not be binding on the Master Servicer or the Trustee. The Master Servicer or
Special Servicer may update or change its recoverability determinations at any
time (but not reverse the other Master Servicer or Special Servicer's
determination that an Advance is a Nonrecoverable Advance). Promptly after
discovering that the Master Servicer has failed to make a Servicing Advance that
the Master Servicer is required to make hereunder, the Paying Agent shall
promptly notify the Trustee in writing of the failure by the Master Servicer to
make such Servicing Advance. The Master Servicer may make Servicing Advances in
its own discretion if it determines that making such Servicing Advance is in the
best interest of the Certificateholders, even if the Master Servicer or the
Special Servicer has determined, in accordance with Section 4.4 below, that any
such Advance would be a Nonrecoverable Advance.
115
The applicable Non-Serviced Mortgage Loan Master Servicer is
obligated to make Servicing Advances pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced
Mortgage Loan, and the Master Servicer shall have no obligation or authority to
make Servicing Advances with respect to such Mortgage Loan.
SECTION 4.3 ADVANCES BY THE TRUSTEE.
(a) To the extent that the Master Servicer fails to make a P&I
Advance with respect to a Mortgage Loan by the Master Servicer Remittance Date
(other than a P&I Advance that the Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
with respect to such Mortgage Loan to the extent the Trustee receives written
notice from the Paying Agent not later than 10:00 a.m. (New York City time) on
the Distribution Date that such Advance has not been made by the Master Servicer
on the Master Servicer Remittance Date unless the Trustee determines that such
P&I Advance, if made, would be a Nonrecoverable Advance. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the Master Servicer has
failed to make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a
Servicing Advance by the date such Servicing Advance is required to be made
(other than a Servicing Advance that the Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives actual notice thereof, the Trustee shall make such Servicing
Advance promptly, but in any event, not later than five Business Days after
notice thereof in accordance with Section 4.2, unless the Trustee determines
that such Servicing Advance, if made, would be a Nonrecoverable Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the Master Servicer or the Special Servicer determines at
any time, in its sole discretion, exercised in good faith, that any Advance
previously made (or Unliquidated Advance in respect thereof) or any proposed
Advance, if made, would constitute a Nonrecoverable Advance, such determination
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Master Servicer, the Paying Agent, the Special Servicer, the Operating Adviser
and the Rating Agencies (and the holder of the Serviced Companion Mortgage Loan
if the Advance relates to a Loan Pair) by the Business Day prior to the
Distribution Date. Such Officer's Certificate shall set forth the reasons for
such determination of nonrecoverability, together with, to the extent such
information, report or document is in the Master Servicer's or Special
Servicer's possession, any related financial information such as related income
and expense statements, rent rolls, occupancy status, property inspections and
any Appraisals performed within the last 12 months on the Mortgaged Property,
and, if such reports are used by the Master Servicer or the Special Servicer, as
applicable, to determine that any P&I Advance or Servicing Advance, as
applicable, would be a Nonrecoverable Advance, any engineers' reports,
environmental surveys, internal final valuations or other information relevant
thereto which support such determination. If the Trustee determines at any time
that any portion of an Advance previously made or a portion of a proposed
Advance that the Trustee is required to make pursuant to this Agreement, if
made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the
116
Trustee delivered to the Depositor, the Master Servicer, the Special Servicer,
the Paying Agent and the Operating Adviser similar to the Officer's Certificate
of the Master Servicer or the Special Servicer described in the prior sentence.
If the Special Servicer determines at any time that any portion of an Advance
previously made would constitute a Nonrecoverable Advance, such determination
shall be evidenced by an Officer's Certificate of a Responsible Officer of the
Special Servicer, delivered to the Depositor, the Master Servicer, the Trustee,
the Paying Agent and the Operating Adviser similar to the Officer's Certificate
of the Master Servicer set forth above. The Trustee shall not be required to
make an Advance that the Master Servicer or the Special Servicer (or with
respect to a Mortgage Loan included in a Loan Pair or any Non-Serviced Mortgage
Loan, the related Other Master Servicer) has previously determined to be a
Nonrecoverable Advance. Notwithstanding any other provision of this Agreement,
none of the Master Servicer, the Special Servicer, or the Trustee shall be
obligated to, nor shall it, make any Advance or make any payment that is
designated in this Agreement to be an Advance, if the Trustee determines in its
good faith business judgment and, with respect to the Master Servicer or the
Special Servicer, in accordance with the Servicing Standard that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance; provided, however, that the Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard that any
P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to the Master Servicer and the Trustee notice of such
determination; provide, further, however, the Special Servicer shall have no
right to make an affirmative determination that any P&I Advance is or would be
recoverable and, in the absence of a determination by the Special Servicer that
such Advance is or would be a Nonrecoverable Advance, the decision that a P&I
Advance is recoverable shall remain with the Master Servicer or Trustee, as
applicable. Absent bad faith, such determination by the Special Servicer shall
be conclusive and binding on the Certificateholders, the Master Servicer and the
Trustee. The Master Servicer's and the Special Servicer's determinations in
accordance with the above provisions shall be conclusive and binding on the
Trustee, the Paying Agent and the Certificateholders. The Master Servicer and
the Special Servicer shall consider Unliquidated Advances in respect of prior
P&I Advances and Servicing Advances as outstanding Advances for purposes of
nonrecoverablility determinations as if such Unliquidated Advance were a P&I
Advance or Servicing Advance, as applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee or Non-Serviced Mortgage Loan Fiscal Agent, as applicable,
shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances
pursuant to and to the extent set forth in the related Non-Serviced Mortgage
Loan Intercreditor Agreement (with, in each case, any accrued and unpaid
interest thereon provided for under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement) in the manner set forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from
the Master Servicer's, the Special Servicer's or the Trustee's own funds shall
accrue interest on a daily basis, at a per annum rate equal to the Advance Rate,
from and including the date such Advance was made to but not including the date
on which such Advance has been reimbursed; provided, however, that neither the
Master Servicer nor any other party shall be entitled to interest accrued on the
amount of any P&I Advance with respect to any Mortgage Loan or any B Note for
the period commencing on the date of such P&I Advance and ending on the day on
which the grace period applicable to the related Mortgagor's obligation to make
the related Scheduled Payment
117
expires pursuant to the related Mortgage Loan or B Note documents. All Late
Collections on any Non-Serviced Mortgage Loan in respect of interest shall,
promptly following receipt thereof, be applied by the Master Servicer to
reimburse the interest component of any P&I Advance outstanding with respect to
such Non-Serviced Mortgage Loan. Any party that makes a P&I Advance with respect
to any Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced
Mortgage Loan Master Servicer monthly, at least two Business Days prior to the
next succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of
whether (and, if any, how much) Advance Interest will be payable on the interest
component of that P&I Advance through the next succeeding related Master
Servicer Remittance Date. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan, B
Note or REO Property and treated as collections of principal or interest shall
be applied first to reimburse the earliest P&I Advance and then each succeeding
P&I Advance to the extent not inconsistent with Section 4.6. The Master Servicer
shall use efforts consistent with the Servicing Standard to collect (but shall
have no further obligation to collect), with respect to the Mortgage Loans (and
the Serviced Companion Mortgage Loans) that are not Specially Serviced Mortgage
Loans, Late Fees and default interest from the Mortgagors in an amount
sufficient to pay Advance Interest and Additional Trust Expenses incurred in
respect of each related Mortgage Loan. The Master Servicer shall be entitled to
retain Late Fees and default interest paid by any Mortgagor during a Collection
Period with respect to any Mortgage Loan (other than the portion of such Late
Fee and default interest that relates to the period commencing after the
Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan, as to
which the Special Servicer shall retain Late Fees and default interest with
respect to such Specially Serviced Mortgage Loan, subject to the offsets set
forth below) as additional servicing compensation only to the extent such Late
Fees and default interest with respect to such Mortgage Loan exceed unreimbursed
Advance Interest, Additional Trust Expenses and Special Servicing Fees (incurred
in respect of the related Mortgage Loan) with respect to the Mortgage Loans
arising on or after the Cut-Off Date. The applicable Special Servicer, with
respect to any Specially Serviced Mortgage Loan, shall (i) pay from any Late
Fees and default interest collected from such Specially Serviced Mortgage Loan
(a) any outstanding and unpaid Advance Interest in respect of such Specially
Serviced Mortgage Loan to the Master Servicer, the Special Servicer or the
Trustee, as applicable and (b) to the Trust, any losses previously incurred by
the Trust with respect to such Specially Serviced Mortgage Loan (other than the
related Special Servicing Fee) and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation. It
is hereby acknowledged that the Master Servicer may only waive Late Fees and
default interest to the extent set forth in Section 8.3(a).
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, Serviced
Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loan or REO
Property (including Advances later determined to be Nonrecoverable Advances) and
Advance Interest thereon shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances and Advance Interest thereon pursuant to Section 5.2
collected in any Collection Period with respect to Mortgage Loans, any Serviced
Companion Mortgage Loan or any B Note or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
118
(b) To the extent that Advances have been made on the Mortgage
Loans, any Serviced Companion Mortgage Loan, any B Note, any Specially Serviced
Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement
Amount with respect to any Determination Date shall be applied to reimburse (i)
the Trustee for any Advances outstanding to the Trustee with respect to any of
such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (ii) the Master Servicer and
the Special Servicer for any Advances outstanding to the Master Servicer or the
Special Servicer, as the case may be, with respect to any of such Mortgage
Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced Mortgage
Loans or REO Mortgage Loans, plus any Advance Interest owed to the Master
Servicer or the Special Servicer with respect to such Advances. To the extent
that any Advance Interest payable to the Master Servicer, the Special Servicer
or the Trustee with respect to a Specially Serviced Mortgage Loan or REO
Mortgage Loan cannot be recovered from the related Mortgagor, the amount of such
Advance Interest shall be payable to the Trustee, the Special Servicer or the
Master Servicer, as the case may be, from amounts on deposit in the Certificate
Account (or sub-account thereof) or the Distribution Account, to the extent of
amounts identified to be applied therefor, pursuant to Section 5.2(a) or Section
5.3(b)(ii). The Master Servicer's, the Special Servicer's and the Trustee's
right of reimbursement under this Agreement for Advances and interest thereon
shall be prior to the rights of the Certificateholders (and, in the case of a
Serviced Companion Mortgage Loan, the holder thereof and, in the case of a B
Note, the holder thereof) to receive any amounts recovered with respect to such
Mortgage Loans, Serviced Companion Mortgage Loans, B Notes or REO Mortgage
Loans.
(c) Advance Interest will be paid to the Trustee, the Master
Servicer and/or the Special Servicer (in accordance with the priorities
specified in the preceding paragraph) first, from Late Fees and default interest
collected from the related Mortgage Loan during the Collection Period during
which the related Advance is reimbursed, and then from Excess Liquidation
Proceeds then available prior to payment from any other amounts. Late Fees and
default interest will be applied on a "loan-by-loan basis" for non-Specially
Serviced Mortgage Loans and on a "loan-by-loan basis" (under which Late Fees and
default interest will be offset against the Advance Interest arising only from
that particular Specially Serviced Mortgage Loan) for Specially Serviced
Mortgage Loans, as the case may be, to the payment of Advance Interest on all
Advances on such non-Specially Serviced Mortgage Loans or such Specially
Serviced Mortgage Loans, as the case may be, then being reimbursed. Advance
Interest payable to the Master Servicer, the Special Servicer or the Trustee in
respect of Servicing Advances on any Loan Pair shall be allocated to the
Serviced Pari Passu Mortgage Loan and the Serviced Companion Mortgage Loan on a
pro rata basis based upon the Principal Balance thereof.
(d) Amounts applied to reimburse Advances shall first be applied
to reduce Advance Interest thereon that was not paid from amounts specified in
the preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall, subject
to Section 4.4, reimburse the Special Servicer for such expenditures on the next
succeeding Master Servicer Remittance Date, provided the Special Servicer has
delivered, on or before the related Determination Date, an invoice and a
119
report substantiating such expenses from the Special Servicer requesting such
reimbursement. With respect to each Collection Period, the Special Servicer
shall deliver such invoice and report to the Master Servicer by the following
Determination Date. All such amounts reimbursed by the Master Servicer shall be
a Servicing Advance, subject to Section 4.4. In the event that the Master
Servicer fails to reimburse the Special Servicer hereunder or the Master
Servicer determines that such Servicing Advance was or, if made, would be a
Nonrecoverable Advance and the Master Servicer does not make such payment, the
Special Servicer shall notify the Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to the Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The Master Servicer, the Paying Agent and the Trustee shall have no
obligation to verify the amount payable to the Special Servicer pursuant to this
Section 4.6(e) and circumstances surrounding the notice delivered by the Special
Servicer pursuant to this Section 4.6(e).
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "Xxxxx Fargo Bank, National Association, as Master
Servicer for LaSalle Bank National Association, as Trustee for the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12" (the "Certificate Account"). On or prior to the Closing Date,
the Master Servicer shall open, or cause to be opened, and shall maintain, or
cause to be maintained an additional separate account or accounts in the name of
"Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12" (the
"Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first
deposit funds in a Certificate Account or the Interest Reserve Account, as the
case may be, the Master Servicer shall give to the Paying Agent and the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its applicable Primary Servicer's
or its Sub-Servicer's) right to direct payments and investments and its rights
of withdrawal under this Agreement.
(c) On the Closing Date, the Master Servicer shall deposit the
Initial Deposit delivered to it by the Depositor on that date into the
Certificate Account. The Master Servicer shall deposit, or cause to be
deposited, into the Certificate Account on the Business Day following receipt
(or, in the case of an inadvertent failure to make such deposit on the Business
Day following receipt, within 3 Business Days of discovery of such failure and
in the case of unscheduled remittances of principal or interest, on the Business
Day following identification of
120
the proper application of such amounts), the following amounts received by it
(including amounts remitted to the Master Servicer by the Special Servicer from
an REO Account pursuant to Section 9.14), other than amounts in respect of
interest and principal on the Mortgage Loans, any Serviced Companion Mortgage
Loan or any B Note due on or before the Cut-Off Date which shall be remitted to
the Depositor (provided that the Master Servicer (I) may retain amounts
otherwise payable to the Master Servicer as provided in Section 5.2(a) rather
than deposit them into the Certificate Account, (II) shall, rather than deposit
them in the Certificate Account, directly remit to the applicable Primary
Servicer the applicable Primary Servicing Fees payable as provided in Section
5.2(a)(iv)(unless already retained by the applicable Primary Servicer), and
(III) shall, rather than deposit them in the Certificate Account, directly remit
the Excess Servicing Fees to the holders thereof as provided in Section
5.2(a)(iv)) (unless already retained by the applicable holder of the excess
servicing rights)):
(A) Principal: all payments on account of principal,
including Principal Prepayments, the principal component of
Scheduled Payments, and any Late Collections in respect thereof, on
the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note;
(B) Interest: subject to subsection (d) hereof, all payments
on account of interest on the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note (minus any portion of any such payment
that is allocable to the period prior to the Cut-Off Date which
shall be remitted to the Depositor and excluding Interest Reserve
Amounts to be deposited in the Interest Reserve Account pursuant to
Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans, any Serviced Companion Mortgage Loan
and any B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by the Master Servicer into an Escrow Account and
not deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited
by the Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held
in the Certificate Account and amounts required to be deposited by
the Special Servicer pursuant to Section 9.14(b) in connection with
losses realized on Eligible Investments with respect to funds held
in the REO Account;
121
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest
received with respect to the Mortgage Loans;
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Account pursuant to this
Agreement, including Purchase Proceeds of any Mortgage Loans
repurchased by a Seller or substitution shortfall amounts (as set
forth in the fifth paragraph of Section 2.3(a)) paid by a Seller in
connection with the substitution of any Qualifying Substitute
Mortgage Loans, payments or recoveries in respect of Unliquidated
Advances or in respect of Nonrecoverable Advances paid from
principal collections on the Mortgage Loan pursuant Section
5.2(a)(II), any other amounts received with respect to any Serviced
Companion Mortgage Loan and with respect to any B Note, all other
amounts received pursuant to the cure and purchase rights set forth
in the applicable Intercreditor Agreement; and
(K) to the extent not otherwise set forth above, all amounts
received from each Non-Serviced Mortgage Loan Master Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage
Loan Trustee pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account (each
an "A/B Loan Custodial Account") into which the Master Servicer shall deposit
any amounts set forth above that are required to be paid to the holder of the
related B Note pursuant to the terms of the related Intercreditor Agreement, in
each case on the same day as the deposit thereof into the Certificate Account.
Any A/B Loan Custodial Account shall be held in trust for the benefit of the
holder of the related B Note and shall not be part of any REMIC Pool.
With respect to any Loan Pair, the Master Servicer shall establish
and maintain one or more sub-accounts of the Certificate Account (each, a
"Serviced Companion Mortgage Loan Custodial Account") into which the Master
Servicer shall deposit any amounts set forth above that are required to be paid
to the holder of the related Serviced Companion Mortgage Loan pursuant to the
terms of the related Loan Pair Intercreditor Agreement, in each case on the same
day as the deposit thereof into the Certificate Account. Each Serviced Companion
Mortgage Loan Custodial Account shall be held in trust for the benefit of the
holder of the related Serviced Companion Mortgage Loan and shall not be part of
any REMIC Pool.
Remittances from any REO Account to the Master Servicer for deposit
in the Certificate Account shall be made by the Special Servicer no later than
the Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest
122
at the related REMIC I Net Mortgage Rate (without any conversion to a 30/360
basis as provided in the definition thereof) on the Scheduled Principal Balance
of such Mortgage Loan as of the Due Date in the month in which such Distribution
Date occurs, to the extent a Scheduled Payment or P&I Advance is timely made in
respect thereof for such Due Date (all amounts so deposited in any consecutive
January and February in respect of each Interest Reserve Loan, the "Interest
Reserve Amount"). For purposes of determining amounts to be deposited into the
Interest Reserve Account, the REMIC I Net Mortgage Rate used in this calculation
for those months will be calculated without regard to any adjustment for
Interest Reserve Amounts or the interest accrual basis as set forth in the
proviso to the definition of "REMIC I Net Mortgage Rate."
(e) Funds in the Certificate Account (including any A/B Loan
Custodial Accounts and Serviced Companion Mortgage Loan Custodial Accounts) and
Interest Reserve Account may be invested and, if invested, shall be invested by,
and at the risk of, the Master Servicer in Eligible Investments selected by the
Master Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 and the holder of any related Serviced Companion
Mortgage Loan or B Note as their interests may appear." None of the Depositor,
the Mortgagors, the Paying Agent or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
credited to an A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or Serviced
Companion Mortgage Loan Custodial Account, as the case may be) or Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized. If the Master Servicer deposits in or transfers to the Certificate
Account, any A/B Loan Custodial Account, any Serviced Companion Mortgage Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Certificate
Account, such A/B Loan Custodial Account, such Serviced Companion Mortgage Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Eligible Investment,
or if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account, the related Serviced Companion Mortgage Loan
Custodial Account, the related A/B Loan
123
Custodial Account or the Interest Reserve Account, as applicable, an amount
equal to all amounts due under any such Eligible Investment (net of anticipated
income or earnings thereon that would have been payable to the Master Servicer
as additional servicing compensation) the Master Servicer shall have the sole
right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the applicable Primary
Servicer will be entitled to hold any Escrow Accounts relating to the Mortgage
Loans that it services in accordance with the requirements set forth in Section
8.3(e). The Master Servicer shall not release any Escrow Amounts held for "earn
outs" or performance criteria listed on Schedule V hereof, without the prior
consent of the Operating Adviser, which consent shall not be unreasonably
withheld or delayed. Within 20 days following the first anniversary of the
Closing Date, the Master Servicer shall deliver to the Trustee, the Paying Agent
and the Operating Adviser, for each Mortgage Loan set forth on Schedule VII
hereto, a brief statement as to the status of the work or project based on the
most recent information provided by the Mortgagor. Schedule VII sets forth those
Mortgage Loans as to which an upfront reserve was collected at closing in an
amount in excess of $75,000 with respect to specific immediate engineering work,
completion of additional construction, environmental remediation or similar
one-time projects (but not with respect to escrow accounts maintained for
ongoing obligations, such as real estate taxes, insurance premiums, ongoing
property maintenance, replacements and capital improvements or debt service). If
the work or project is not completed in accordance with the requirements of the
escrow, the Master Servicer and the Special Servicer (which shall itself consult
with the Operating Adviser) will consult with each other as to whether there
exists a material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XI, as
to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, the Master Servicer shall, unless the
Scheduled Payment is received before the end of such Collection Period, make a
P&I Advance by deposit to the Certificate Account on the Master Servicer
Remittance Date in an amount equal to the Scheduled Payment or the Assumed
Scheduled Payment, as applicable, and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment or Assumed Scheduled Payment, as applicable, shall be deemed
to have been received in such Collection Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) Subsection (I). The Master Servicer shall, from time to time,
make withdrawals from the Certificate Account and remit them by wire transfer
prior to 12:00 p.m., New York City time, on the related Master Servicer
Remittance Date in immediately available funds to the account specified in this
Section or otherwise (w) to such account as it shall determine from time to time
of amounts payable to the Master Servicer from the Certificate Account (or,
insofar as they relate to a B Note, from the related A/B Loan Custodial Account
or, insofar as they relate to a Serviced Companion Mortgage Loan, from the
related Serviced
124
Companion Mortgage Loan Custodial Account) pursuant to clauses (i), (ii), (iii),
(iv), (vi), (viii) and (ix) below; (x) to the account specified in writing by
the Paying Agent and the Trustee, as applicable, from time to time of amounts
payable to the Paying Agent and the Trustee from the Certificate Account (and,
insofar as they relate to a B Note, from the related A/B Loan Custodial Account
and, insofar as they relate to a Serviced Companion Mortgage Loan, from the
Serviced Companion Mortgage Loan Custodial Account) pursuant to clauses (ii),
(iii), (v), (vi), (xi), (xii) and (xiii) below; provided that if the Master
Servicer fails to make any remittance required by this clause (x) to be made by
the Master Servicer to the Paying Agent for deposit in the Distribution Account
on the Master Servicer Remittance Date pursuant to clause (iii) or (xi) below,
the Master Servicer shall pay (from its own funds without right of reimbursement
therefor) to the Paying Agent, for the account of the Paying Agent, interest on
any amount not timely remitted at the Advance Rate from and including the day
the remittance was required to be made to, but not including, the day on which
such remittance is actually made, and, (notwithstanding any contrary provision
of Section 8.28) if such remittance and payment of interest are made not later
than 11:00 a.m. (Eastern time) on the related Distribution Date, then, insofar
as the failure to make such remittance otherwise constitutes an Event of Default
on the part of the Master Servicer, then such Event of Default shall thereupon
be deemed to have been cured; and (y) to the Special Servicer from time to time
of amounts payable to the Special Servicer from the Certificate Account (or,
insofar as they relate to a B Note, from the related A/B Loan Custodial Account
or, insofar as they relate to a Serviced Companion Mortgage Loan, from the
related Serviced Companion Mortgage Loan Custodial Account) pursuant to clauses
(i), (iv), (vi), (vii) and (ix) below of the following amounts, from the amounts
specified for the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late
Fees (in excess of amounts used to pay Advance Interest and Additional Trust
Expenses, on a loan-by-loan basis) relating to the Mortgage Loans, Serviced
Companion Mortgage Loans or B Notes which are not Specially Serviced Mortgage
Loans, 50% of any Modification Fees relating to Mortgage Loans, Serviced
Companion Mortgage Loans or B Notes which are not Specially Serviced Mortgage
Loans as provided in Section 8.18, 50% of any assumption application fees
relating to Mortgage Loans, Serviced Companion Mortgage Loans or B Notes which
are not Specially Serviced Mortgage Loans, 50% of any assumption fees relating
to Mortgage Loans, Serviced Companion Mortgage Loans or B Notes which are not
Specially Serviced Mortgage Loans, 100% of any extension fees payable under
Section 8.10 or other fees payable to the Master Servicer hereunder and (B)
directly to the Special Servicer, 50% of any assumption fees, assumption
application fees, Modification Fees and related charges on Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans and, to the extent deposited in the Certificate Account, all
assumption fees (including assumption application fees) relating to Specially
Serviced Mortgage Loans and to the extent provided in Section 9.11(c), Late
Fees, Modification Fees, extension fees and other fees collected on Specially
Serviced Mortgage Loans, in each case to the extent provided for herein from
funds paid by or on behalf of the applicable Mortgagor and to the extent
provided for in Section 9.11(c), default interest in excess of Advance Interest
arising only from that particular Specially Serviced Mortgage Loan for which
Late Fees or default interest were collected;
(ii) Servicing Advances (including amounts later determined
to be Nonrecoverable Advances): (A) in the case of all Mortgage Loans, Serviced
Companion Mortgage Loans and B Notes, subject to clause (B) below and subsection
(iv) of Section
125
5.2(a)(II), to reimburse or pay to the Master Servicer, the Special Servicer and
the Trustee, pursuant to Section 4.6, (x) prior to a Final Recovery
Determination or determination in accordance with Section 4.4 that any Advance
is a Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, as applicable, from payments made by
the related Mortgagor of the amounts to which a Servicing Advance relates or
from REO Income from the related REO Property or from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the
extent that a Servicing Advance has been or is being reimbursed, any related
Advance Interest thereon first, from Late Fees and default interest collected
during the Collection Period during which such Advance is reimbursed, and then
from Excess Liquidation Proceeds then available and then from any other amounts
on deposit in the Certificate Account; provided that, Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest will be offset against the Advance Interest arising only from
the particular Mortgage Loan) for non-Specially Serviced Mortgage Loans (and any
Serviced Companion Mortgage Loans and B Notes that are not Specially Serviced
Mortgage Loans) and on a "loan-by-loan basis" (under which Late Fees and default
interest will be offset against the Advance Interest arising only from the
particular Specially Serviced Mortgage Loan) for Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans (and any Serviced Companion Mortgage
Loan and B Notes that are not Specially Serviced Mortgage Loans) or such
Specially Serviced Mortgage Loans, as the case may be, then being reimbursed or
(y) after a Final Recovery Determination or determination that any Servicing
Advance on the related Mortgage Loan, Serviced Companion Mortgage Loan or B Note
is a Nonrecoverable Advance, any Servicing Advances made on the related Mortgage
Loan, related Serviced Companion Mortgage Loan, related B Note or REO Property
from any funds on deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan, Serviced Companion
Mortgage Loan, B Note or REO Property) and pay Advance Interest thereon first,
from Late Fees and default interest collected during the Collection Period
during which such Advance is reimbursed (applying such Late Fees and default
interest on a "loan-by-loan basis" for all non-Specially Serviced Mortgage Loans
(and any Serviced Companion Mortgage Loans and B Notes that are not Specially
Serviced Mortgage Loans) and on a "loan-by-loan basis", as set forth above, for
all Specially Serviced Mortgage Loans, as the case may be, to the payment of
Advance Interest on all Advances on such non-Specially Serviced Mortgage Loans
(and any Serviced Companion Mortgage Loans and B Notes that are not Specially
Serviced Mortgage Loans) or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed), then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the Certificate Account
and (B) in the case of any Non-Serviced Mortgage Loan and from any funds on
deposit in the Certificate Account, to reimburse the applicable Non-Serviced
Mortgage Loan Master Servicer, the applicable Non-Serviced Mortgage Loan Special
Servicer, the applicable Non-Serviced Mortgage Loan Trustee and the applicable
Non-Serviced Mortgage Loan Fiscal Agent for Pari Passu Loan Nonrecoverable
Advances and any accrued and unpaid interest thereon provided for under the
related Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced
Mortgage Loan Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master
Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a
126
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance
has been or is being reimbursed, any related Advance Interest thereon, first,
from Late Fees and default interest collected during the Collection Period
during which such Advance is reimbursed, and then from Excess Liquidation
Proceeds then available and then from any other amounts on deposit in the
Certificate Account; provided that, Late Fees and default interest will be
applied on a "loan-by-loan basis" (under which Late Fees and default interest
will be offset against the Advance Interest arising only from the particular
Mortgage Loan) for non-Specially Serviced Mortgage Loans and on a "loan-by-loan
basis" (under which Late Fees and default interest will be offset against the
Advance Interest arising only from the particular Specially Serviced Mortgage
Loan) for Specially Serviced Mortgage Loans, as the case may be, to the payment
of Advance Interest on all Advances on such non-Specially Serviced Mortgage
Loans or such Specially Serviced Mortgage Loans, as the case may be, then being
reimbursed or (y) if after a Final Recovery Determination or determination in
accordance with Section 4.4 that any P&I Advance on the related Mortgage Loan is
a Nonrecoverable Advance, any P&I Advances made on the related Mortgage Loan or
REO Property from funds on deposit in the Certificate Account (regardless of
whether such amount was recovered from the applicable Mortgage Loan or REO
Property) and any Advance Interest thereon, first, from Late Fees and default
interest collected during the Collection Period during which such Advance is
reimbursed (applying such Late Fees and default interest on a "loan-by-loan
basis" for all non-Specially Serviced Mortgage Loans and on a "loan-by-loan
basis", as set forth above, for all Specially Serviced Mortgage Loans, as the
case may be, to the payment of Advance Interest on all Advances on such
non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage Loans,
as the case may be, then being reimbursed), then from Excess Liquidation
Proceeds then available and then from any other amounts on deposit in the
Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to pay
to itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee, to pay to the applicable Primary Servicer (or the Master Servicer)
the Primary Servicing Fees, and to pay to the parties entitled thereto the
Excess Servicing Fees (to the extent not previously retained by any of such
parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the
Distribution Account for withdrawal by the Paying Agent for payment to itself
and the Trustee, the Paying Agent Fee and the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be Additional Trust Expenses (at the time set
forth herein or in the definition thereof), and any other amounts that in fact
constitute Additional Trust Expenses whose payment is not more specifically
provided for in this Agreement; provided that the Depositor shall not be
entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified
127
by the Special Servicer equal to the Liquidation Fee, to the extent provided in
Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the Certificate Account
(including any A/B Loan Custodial Accounts and Serviced Companion Mortgage Loan
Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in
the Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest) to the Distribution Account (or in the case of
any Excess Interest, deposit to the Excess Interest Sub-account under Section
5.3(b), other than amounts held for payment in future periods or pursuant to
clause (xii) below and the obligation to make such payments to be offset by the
amount of any Class A-2FL Net Swap Payment, Class A-MFL Net Swap Payment or
Class A-JFL Net Swap Payment, as set forth in Section 8.31(b), Section 8.32(b)
or Section 8.32(c), as applicable, and Section 6.12;
(xii) Reserve Account: to make payment on each Master
Servicer Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note for which an A/B Loan
Custodial Account is required to be established by the Master Servicer:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to the
portion of the Certificate Account that does not constitute the A/B
Loan Custodial Account, of amounts necessary for the payments or
reimbursement of amounts described in any one or more of clauses
(i), (ii), (iii), (iv), (vi), (vii), (viii), (ix) and (xii) above,
but only insofar as the payment or reimbursement described therein
arises from or is related solely to such A/B Mortgage Loan and is
allocable to the A/B Mortgage Loan pursuant to this Agreement or the
related Intercreditor Agreement, and the Master Servicer shall also
be entitled to make transfers from time to time, from the related
A/B Loan Custodial Account to the portion of the Certificate Account
that does not constitute the A/B Loan Custodial Account, of amounts
transferred
128
to such related A/B Loan Custodial Account in error, and amounts
necessary for the clearing and termination of the Certificate
Account pursuant to Section 8.29;
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to the
portion of the Certificate Account that does not constitute the A/B
Loan Custodial Account, of amounts not otherwise described in clause
(A) above to which the holder of an A Note is entitled under the A/B
Mortgage Loan and the related Intercreditor Agreement (including in
respect of interest, principal and Prepayment Premiums in respect of
the A Note (whether or not by operation of any provision of the
related Intercreditor Agreement that entitles the holder of such A
Note to receive remittances in amounts calculated without regard to
any modification, waiver or amendment of the economic terms of such
A Note)); and
(C) the Master Servicer shall on each Master Servicer Remittance
Date remit to the holder of the related B Note all amounts on
deposit in such A/B Loan Custodial Account (net of amounts permitted
or required to be transferred therefrom as set forth in clauses (A)
and/or (B) above), to the extent that the holder of such B Note is
entitled thereto under the related Intercreditor Agreement
(including by way of the operation of any provision of the related
Intercreditor Agreement that entitles the holder of such B Note to
reimbursement of cure payments made by it).
and provided further, however, that in the case of any Serviced Companion
Mortgage Loan:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the Certificate Account that
does not constitute any Serviced Companion Mortgage Loan Custodial
Account, of amounts necessary for the payments or reimbursement of
amounts described in any one or more of clauses (i), (ii), (iii),
(iv), (v), (vi), (vii), (viii), (ix) and (xii) above, but only
insofar as the payment or reimbursement described therein arises
from or is related solely to such Loan Pair and is allocable to the
Serviced Companion Mortgage Loan, and the Master Servicer shall also
be entitled to make transfers from time to time, from the related
Serviced Companion Mortgage Loan Custodial Account to the portion of
the Certificate Account that does not constitute any Serviced
Companion Mortgage Loan Custodial Account, of amounts transferred to
such related Serviced Companion Mortgage Loan Custodial Account in
error, and amounts necessary for the clearing and termination of the
Certificate Account pursuant to Section 8.29; provided, however that
the Master Servicer shall not be entitled to make transfers from the
portion of the Certificate Account that does not constitute any
Serviced Companion Mortgage Loan Custodial Account (other than
amounts previously transferred from the related Serviced Companion
Mortgage Loan Custodial Account in accordance with this clause (A))
of amounts necessary for the payment or reimbursement of amounts
described in any one or more of the foregoing clauses;
129
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the Certificate Account that
does not constitute any Serviced Companion Mortgage Loan Custodial
Account, of amounts not otherwise described in clause (A) above to
which the holder of a Serviced Pari Passu Mortgage Loan is entitled
under the related Loan Pair Intercreditor Agreement (including in
respect of interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, on either (x) the later of (i) one
(1) Business Day after the related Determination Date or (ii)
alternatively, but only if the related Serviced Companion Mortgage
Loan is primary serviced under the applicable Primary Servicing
Agreement, one (1) Business Day after receipt from the applicable
Primary Servicer or (y) such other date as may be agreed to between
the Master Servicer and the holder of the related Serviced Companion
Mortgage Loan (in their respective sole discretion), remit to the
holder of the related Serviced Companion Mortgage Loan all amounts
on deposit in such related Serviced Companion Mortgage Loan
Custodial Account (net of amounts permitted or required to be
transferred therefrom as set forth in clauses (A) and/or (B) above),
to the extent that the holder of such Serviced Companion Mortgage
Loan is entitled thereto under the related Loan Pair Intercreditor
Agreement.
No decision by the Master Servicer or the Trustee under either this
Section 5.2(a) or subsection (iv) of Section 5.2(a)(II), to defer the
reimbursement of Advances and/or Advance Interest shall be construed as an
agreement by the Master Servicer or the Trustee to subordinate (in respect of
realizing losses), to any Class of Certificates, such party's right to such
reimbursement during such period of deferral.
Expenses incurred with respect to any Loan Pair shall be allocated
in accordance with the related Loan Pair Intercreditor Agreement. Expenses
incurred with respect to an A/B Mortgage Loan shall be allocated in accordance
with the related Intercreditor Agreement. The Master Servicer shall keep and
maintain a separate accounting for each Mortgage Loan, Serviced Companion
Mortgage Loan and B Note for the purpose of justifying any withdrawal or
transfer from the Certificate Account, each Serviced Companion Mortgage Loan
Custodial Account and any A/B Loan Custodial Account, as applicable. If funds
collected in respect of the A Notes are insufficient to pay the Master Servicing
Fee, then the Master Servicer shall be entitled to withdraw the amount of such
shortfall from the collections on, and other proceeds of, the B Note that are
held in the related A/B Loan Custodial Account. The Master Servicer shall not be
permitted to withdraw any funds from the portion of the Certificate Account that
does not constitute the A/B Loan Custodial Account unless there are no remaining
funds in the related A/B Loan Custodial Account available and required to be
paid in accordance with the related Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts.
If any Advance made with respect to any Mortgage Loan on or before
the date on which such Mortgage Loan becomes (or, but for the
requirement that the
130
Mortgagor shall have made three consecutive scheduled payments under
its modified terms, would then constitute) a Rehabilitated Mortgage
Loan, together with Advance Interest accrued thereon, is not,
pursuant to the operation of the provisions of Section 5.2(a)(I),
reimbursed to the Person who made such Advance on or before the
date, if any, on which such Mortgage Loan becomes a Rehabilitated
Mortgage Loan, such Advance, together with such Advance Interest,
shall constitute a "Workout-Delayed Reimbursement Amount" to the
extent that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" shall be construed always to mean the related
Advance and any Advance Interest thereon, together with any further
Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit
the right of any Person hereunder to determine that such amount
instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii)
below (subject to the terms and conditions thereof) sets forth the
terms of and conditions to the right of a Person to be reimbursed
for any Workout-Delayed Reimbursement Amount to the extent that such
Person is not otherwise entitled to reimbursement and payment of
such Workout-Delayed Reimbursement Amount pursuant to the operation
of Section 5.2(a)(I) above. Subsection (iv) below (subject to the
terms and conditions thereof) authorizes the Master Servicer to
abstain from reimbursing itself (or, if applicable, the Trustee to
abstain from obtaining reimbursement) for Nonrecoverable Advances
under certain circumstances at its sole option. Upon any
determination that all or any portion of a Workout-Delayed
Reimbursement Amount constitutes a Nonrecoverable Advance, then the
reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further
Advance Interest) shall be as fully payable and reimbursable to the
relevant Person as would any other Nonrecoverable Advance (and
Advance Interest thereon) and, as a Nonrecoverable Advance, such
amount may become the subject of the Master Servicer's (or, if
applicable, the Trustee's) exercise of its sole option authorized by
subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall be entitled to reimbursement and payment for all
Workout-Delayed Reimbursement Amounts in each Collection Period;
provided, however, that the aggregate amount (for all such Persons
collectively) of such reimbursements and payments in such Collection
Period shall not exceed (and the reimbursement and payment shall be
made from) the aggregate amount in the Collection Account allocable
to principal received or advanced with respect to the Mortgage Loans
for such Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount (but not including any
such amounts that constitute Advances) and net of any Nonrecoverable
Advances then
131
outstanding and reimbursable from such principal in accordance with
Section 5.2(a)(II)(iv) below. As and to the extent provided in
clause (II)(A) of the definition thereof, the Principal Distribution
Amount for the Distribution Date related to such Collection Period
shall be reduced to the extent that such payment or reimbursement of
a Workout-Delayed Reimbursement Amount is made from the aggregate
amount in the Collection Account allocable to principal pursuant to
the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to
Abstain from Reimbursements of Certain Nonrecoverable Advances. To
the extent that Section 5.2(a)(I) otherwise entitles the Master
Servicer, Special Servicer or Trustee to reimbursement for any
Nonrecoverable Advance (including Workout Delayed Reimbursement
Amounts that have been determined by the Master Servicer, the
Special Servicer or the Trustee to be Nonrecoverable Advances) (or
payment of Advance Interest thereon from a source other than Late
Fees and default interest on the related Mortgage Loan) during any
Collection Period, then, notwithstanding any contrary provision of
subsection (I) above, (a) to the extent that one or more such
reimbursements and payments of Nonrecoverable Advances (and such
Advance Interest thereon) are made, such reimbursements and payments
shall be made, first, from the aggregate amount in the Collection
Account allocable to principal received or advanced with respect to
the Mortgage Loans for such Collection Period contemplated by clause
(I)(A) of the definition of Principal Distribution Amount (but not
including any such amounts that constitute Advances, and prior to
any deduction for Workout-Delayed Reimbursement Amounts (and Advance
Interest thereon) that were reimbursed or paid during the related
Collection Period from amounts allocable to principal received with
respect to the Mortgage Loans, as described by clause (II)(A) of the
definition of Principal Distribution Amount and pursuant to
subsection (iii) of Section 5.2(a)(II)), and then from other
collections (including interest) on the Mortgage Loans for such
Collection Period, provided, that if interest is used to reimburse
such Nonrecoverable Advances, the party entitled to such
reimbursement shall notify the Rating Agencies at least fifteen (15)
days prior to such reimbursement, unless circumstances exist that
are extraordinary in the sole discretion of such party, and (b) if
and to the extent that the amount of such a Nonrecoverable Advance
(and Advance Interest thereon), together with all Nonrecoverable
Advances (and Advance Interest thereon) theretofore reimbursed
during such Collection Period, would exceed such principal on the
Mortgage Loans for such Collection Period (and Advance Interest
thereon), the Master Servicer or the Special Servicer (or the
Trustee, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever), if it
elects at its sole option (subject to the requirement below that
such party may not defer any reimbursement for more than 6
Collection Periods without the consent of the Operating Adviser), to
abstain from reimbursing itself (notwithstanding that it is entitled
to such reimbursement) during that Collection Period for all or a
portion of such Nonrecoverable Advance (and Advance Interest
thereon), provided that the aggregate amount that is deferred with
respect to all Nonrecoverable Advances (and Advance Interest
thereon) with respect to all Mortgage Loans for any particular
Collection Period is less than or equal to such
132
excess set forth above in this clause (b). The Master Servicer (or
the Trustee) or the Special Servicer, in considering whether an
Advance is a Nonrecoverable Advance, shall be entitled to give due
regard to the existence of any outstanding Nonrecoverable Advance or
Workout Delayed Reimbursement Amount with respect to other Mortgage
Loans which, at the time of such consideration, the reimbursement of
which is being deferred or delayed by the Master Servicer, the
Special Servicer or the Trustee because there is insufficient
principal available for such reimbursement, in light of the fact
that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance or Servicing Advance
under consideration, but also as a potential source of reimbursement
of such Nonrecoverable Advance or Workout Delayed Reimbursement
Amount which is or may be being deferred or delayed. If the Master
Servicer or the Special Servicer (or the Trustee) makes such an
election at its sole option to defer reimbursement with respect to
all or a portion of a Nonrecoverable Advance (and Advance Interest
thereon), then such Nonrecoverable Advance (and Advance Interest
thereon) or portion thereof shall continue to be fully reimbursable
in any subsequent Collection Period to the same extent as set forth
above. In connection with a potential election by the Master
Servicer, the Special Servicer or the Trustee to abstain from the
reimbursement of a particular Nonrecoverable Advance or portion
thereof during the Collection Period for any Distribution Date, the
Master Servicer or the Special Servicer (or the Trustee) shall
further be authorized to wait for principal collections to be
received before making its determination of whether to abstain from
the reimbursement of a particular Nonrecoverable Advance or portion
thereof until the end of the Collection Period. Notwithstanding the
foregoing, the Master Servicer (or the Special Servicer or the
Trustee, as applicable) may defer the above reimbursement for no
more than 6 Collection Periods without the consent of the Operating
Adviser and, in any event, 12 Collection Periods in the aggregate.
If the Master Servicer (or the Special 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 Special Servicer or the Trustee, as
applicable) will be entitled to immediate reimbursement of such
Nonrecoverable Advance plus interest thereon at the Advance Rate.
The agreement of the Master Servicer (or the Special Servicer or the
Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on
the part of such Master Servicer (or the Special Servicer or the
Trustee, as applicable), or a right of the Certificateholders. No
such deferment shall be deemed to create in the Certificateholders a
right to prior payment of distributions over such Master Servicer's,
Special Servicer's or the Trustee's right to reimbursement for
Advances. Deferred Advances shall continue to earn interest at the
Advance Rate. In all events the decision to defer reimbursement or
seek immediate reimbursement of Nonrecoverable Advances shall be
deemed to be in accordance with the Servicing Standard.
The reimbursements of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts set forth in clauses (iii) and (iv)
above shall take into account
133
the allocation of amounts described in the last sentence of the definition
of "Liquidation Realized Loss."
None of the Master Servicer, the Special Servicer or the
Trustee shall have any liability whatsoever for making an election, or
refraining from making an election, that is authorized under this
subsection (II)(iv). The foregoing shall not, however, be construed to
limit any liability that may otherwise be imposed on such Person for any
failure by such Person to comply with the conditions to making such an
election under this subsection (II)(iv) or to comply with the terms of
this subsection (II)(iv) and the other provisions of this Agreement that
apply once such an election, if any, has been made.
Any election by the Master Servicer, the Special Servicer (or
the Trustee) to abstain from reimbursing itself for any Nonrecoverable
Advance (and Advance Interest thereon) or portion thereof with respect to
any Collection Period shall not be construed to impose on the Master
Servicer, the Special Servicer (or the Trustee) any obligation to make
such an election (or any entitlement in favor of any Certificateholder or
any other Person to such an election) with respect to any subsequent
Collection Period or to constitute a waiver or limitation on the right of
the Master Servicer, the Special Servicer (or the Trustee) to otherwise be
reimbursed for such Nonrecoverable Advance (and Advance Interest thereon).
Any election by the Master Servicer, the Special Servicer or the Trustee
to abstain from reimbursing itself for any Nonrecoverable Advance or
portion thereof with respect to any one or more Collection Periods shall
not limit the accrual of Advance Interest on the unreimbursed portion of
such Nonrecoverable Advance for the period prior to the actual
reimbursement of such Nonrecoverable Advance. None of the Master Servicer,
the Special 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 holder of a B Note or Serviced Companion
Mortgage Loan for any such election that such party makes as contemplated
by this subsection or for any losses, damages or other adverse economic or
other effects that may arise from such an election. The foregoing
statements in this paragraph shall not limit the generality of the
statements made in the immediately preceding paragraph. Notwithstanding
the foregoing, neither the Master Servicer, the Special Servicer nor the
Trustee shall have the right to abstain from reimbursing itself for any
Nonrecoverable Advance to the extent of the amount described in clause
(I)(A) of the definition of Principal Distribution Amount.
(v) Reimbursement Rights of the Master Servicer, Special
Servicer and Trustee Are Senior. Nothing in this Agreement shall be
deemed to create in any Certificateholder a right to prior payment
of distributions over the Master Servicer's, the Special Servicer's
or the Trustee's right to reimbursement for Advances plus Advance
Interest (whether those that constitute Workout-Delayed
Reimbursement Amounts, those that have been the subject of the
Master Servicer's election authorized in subsection (iv) or
otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account (or sub-account thereof) and shall be distributed on the
134
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate, provided, however, that as to the Mortgage Loans set
forth on Schedule XI, for which the Scheduled Payment due each month is due on a
Due Date (including any grace period) that may occur after the end of the
Collection Period in such month, sums received by the Master Servicer with
respect to such Scheduled Payment but after the end of such Collection Period
shall be applied by the Master Servicer to reimburse any related P&I Advance
made pursuant to Section 5.1(h), and the Master Servicer shall remit to the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments and Balloon Payments received after the end of
such Collection Period but no later than the second Business Day immediately
preceding such Master Servicer Remittance Date on the Mortgage Loans set forth
on Schedule XI. The Master Servicer shall use its best efforts to remit to the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Balloon Payments received after the date that is two Business Days
immediately preceding the related Master Servicer Remittance Date and prior to
the Distribution Date. In connection with the deposit of any Balloon Payments to
the Distribution Account in accordance with the immediately preceding sentence,
the Master Servicer shall promptly notify the Paying Agent and the Paying Agent
shall, if it has already reported anticipated distributions to the Depository,
use commercially reasonable efforts to cause the Depository to make the revised
distribution on a timely basis on such Distribution Date. Neither the Master
Servicer nor the Paying Agent shall be liable or held responsible for any
resulting delay or failure (including any claim by the Depository) in the making
of such distribution to Certificateholders and any expenses incurred by the
Master Servicer or the Paying Agent in connection with its efforts to cause the
Depository to make such revised distributions on a timely basis shall be
reimbursed by the Trust. For purposes of the definition of "Available
Distribution Amount" and "Principal Distribution Amount," (i) the Scheduled
Payments relating to the Mortgage Loans set forth on Schedule XI that are
collected after the end of the related Collection Period and (ii) Principal
Prepayments and Balloon Payments relating to the Mortgage Loans set forth on
Schedule XI received after the end of the related Collection Period but prior to
the Master Servicer Remittance Date shall each be deemed to have been collected
in the prior Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2008 and on the Master Servicer Remittance Date related to
the final Distribution Date, the Master Servicer shall withdraw all amounts then
in the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish
(with respect to clause (i), on or prior to the Closing Date, and with respect
to clause (ii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank, National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ12, Distribution Account" and (ii) an account (the "Reserve Account") to
be held in trust for the benefit of the holders of interests in the Trust until
disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank,
National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in
135
trust for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12, Reserve
Account." The Distribution Account and the Reserve Account shall be Eligible
Accounts. Funds in the Reserve Account shall not be invested. The Distribution
Account and Reserve Account shall be held separate and apart from and shall not
be commingled with any other monies including, without limitation, other monies
of the Paying Agent held under this Agreement, it being understood that the
Reserve Account may be a subaccount of the Distribution Account.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 and the holder of any related B Note as their
interests may appear." None of the Depositor, the Mortgagors, the Special
Servicer, the Master Servicer, any Primary Servicer, the Paying Agent or the
Trustee shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the 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.
(b) The Paying Agent shall deposit into the Distribution Account
or the Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer and the Trustee other than Excess
Liquidation Proceeds, into the Distribution Account and all Excess Liquidation
Proceeds into the Reserve Account. The Paying Agent shall deposit amounts
constituting collections of Excess Interest on the Mortgage Loans into the
Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the Certificate Account and collected during the
related Collection Period as provided in clauses (v) and (xi) of Section 5.2(a)
and the P&I Advance Amount and, on the Master Servicer Remittance Date occurring
in March of any year, commencing in March 2008, and on the Master Servicer
Remittance Date related to the final Distribution Date, amounts held in the
Interest Reserve Account. The Paying Agent shall make withdrawals from the
Distribution Account (including the Excess Interest Sub-account and the Reserve
Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution
Account and the Reserve Account in error and pay such amounts to the Persons
entitled thereto;
136
(ii) to pay any amounts payable to the Master Servicer, any
Primary Servicer, the Special Servicer and the Trustee (including the Trustee's
Fee (other than that portion thereof, that constitutes the Paying Agent's Fee))
and the Paying Agent (including the Paying Agent Fee), or other expenses or
other amounts permitted to be paid hereunder and not previously paid to such
Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders (other
than the Class A-2FL Certificateholders, the Class A-MFL Certificateholders and
the Class A-JFL Certificateholders) pursuant to Sections 6.5 and 6.11 and to
make distributions to the Class A-2FL Grantor Trust, in respect of the Class
A-2FL Regular Interest, to the Class A-MFL Grantor Trust, in respect of the
Class A-MFL Regular Interest, and to the Class A-JFL Grantor Trust, in respect
of the Class A-JFL Regular Interest, with a credit for the amount of the Class
A-2FL Net Swap Payment, the Class A-MFL Net Swap Payment or the Class A-JFL Net
Swap Payment, as applicable, deemed distributed by the Paying Agent to the
Master Servicer's Floating Rate Account pursuant to Sections 5.3(c) and 6.12;
and
(iv) to clear and terminate the Distribution Account and the
Reserve Account pursuant to Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall, and,
with respect to Class A-2FL Net Swap Payments, Class A-MFL Net Swap Payments and
Class A-JFL Net Swap Payments, the Master Servicer shall, establish and maintain
separate Floating Rate Accounts for the benefit of the Class A-2FL
Certificateholders, the Class A-MFL Certificateholders and the Class A-JFL
Certificateholders. The Floating Rate Accounts established by the Master
Servicer and referenced in the immediately succeeding sentence shall be
described herein as the "Master Servicer's Class A-2FL Floating Rate Account",
the "Master Servicer's Class A-MFL Floating Rate Account" and the "Master
Servicer's Class A-JFL Floating Rate Account", respectively. The Class A-2FL
Floating Rate Account shall (i) at all times be an Eligible Account, (ii) be
entitled: "Xxxxx Fargo Bank, National Association, as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for Holders of the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-2FL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ12, Floating Rate Account, Class A-2FL", as applicable and (iii)
relate solely to the Class A-2FL Certificates, and the Paying Agent (and, with
respect to the Master Servicer's Class A-2FL Floating Rate Account, the Master
Servicer) shall have the exclusive right to withdraw funds therefrom. The Class
A-MFL Floating Rate Account shall (i) at all times be an Eligible Account, (ii)
be entitled: "Xxxxx Fargo Bank, National Association, as Paying Agent on behalf
of LaSalle Bank National Association, as Trustee, in trust for Holders of the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-MFL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ12, Floating Rate Account, Class A-MFL", as applicable and (iii)
relate solely to the Class A-MFL Certificates, and the Paying Agent (and, with
respect to the Master Servicer's Class A-MFL Floating Rate Account, the Master
Servicer) shall have the exclusive right to withdraw funds therefrom. The Class
A-JFL Floating Rate Account shall (i) at all times be an Eligible Account, (ii)
be entitled: "Xxxxx Fargo Bank, National Association, as Paying Agent on behalf
of LaSalle Bank National Association, as Trustee, in trust for Holders of the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating Rate Account, Class A-JFL"
and "Xxxxx Fargo Bank,
137
National Association, as Master Servicer for LaSalle Bank National Association,
as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Floating
Rate Account, Class A-JFL", as applicable and (iii) relate solely to the Class
A-JFL Certificates, and the Paying Agent (and, with respect to the Master
Servicer's Class A-JFL Floating Rate Account, the Master Servicer) shall have
the exclusive right to withdraw funds therefrom. The Paying Agent shall deposit
into the Class A-2FL Floating Rate Account (other than the Master Servicer's
Class A-2FL Floating Rate Account), the Class A-MFL Floating Rate Account (other
than the Master Servicer's Class A-MFL Floating Rate Account) and the Class
A-JFL Floating Rate Account (other than the Master Servicer's Class A-JFL
Floating Rate Account) on or prior to each Distribution Date an amount equal to
those amounts payable under the related Class A-2FL Regular Interest, Class
A-MFL Regular Interest and Class A-JFL Regular Interest, respectively, (in each
case net of any payments to the Swap Counterparty made pursuant to Section
8.31(b), Section 8.32(b) or Section 8.33.(b) hereof) pursuant to Article VI
hereof and shall deposit into the Class A-2FL Floating Rate Account (other than
the Master Servicer's Class A-2FL Floating Rate Account), the Class A-MFL
Floating Rate Account (other than the Master Servicer's Class A-MFL Floating
Rate Account) and the Class A-JFL Floating Rate Account (other than the Master
Servicer's Class A-JFL Floating Rate Account), respectively, all amounts
received on the related Swap Contract in respect of such Distribution Date. With
respect to the Master Servicer's Class A-2FL Floating Rate Account, the Master
Servicer's Class A-MFL Floating Rate Account and the Master Servicer's Class
A-JFL Floating Rate Account established by the Master Servicer on behalf of the
Trustee, the Paying Agent, pursuant to Section 6.12, shall be deemed to have
transferred, and to have directed the Master Servicer to deposit, into the
Master Servicer's Class A-2FL Floating Rate Account, the Master Servicer's Class
A-MFL Floating Rate Account and the Master Servicer's Class A-JFL Floating Rate
Account, as applicable, on or prior to each Master Servicer Remittance Date an
amount equal to that portion payable under the Class A-2FL Regular Interest, the
Class A-MFL Regular Interest or the Class A-JFL Regular Interest pursuant to
Article VI hereof that is equal to the Class A-2FL Net Swap Payments, the Class
A-MFL Net Swap Payments or the Class A-JFL Net Swap Payments, as applicable, due
to the Swap Counterparty under the related Swap Contract. The Paying Agent shall
make withdrawals from the Class A-2FL Floating Rate Account, the Class A-MFL
Floating Rate Account and the Class A-JFL Floating Rate Account under its
control in the following order of priority and only for the following purposes:
(i) to withdraw amounts deposited in the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account and the Class A-JFL
Floating Rate Account in error and pay such amounts to the Persons entitled
thereto;
(ii) to make distributions to the Holders of the Class A-2FL
Certificates, the Class A-MFL Certificates and the Class A-JFL Certificates
pursuant to Section 6.12;
(iii) to withdraw termination payments to purchase a
replacement Swap Contract, if applicable;
(iv) to pay the costs and expenses incurred by the Paying
Agent in connection with enforcing the rights of the Trust under the Class A-2FL
Swap Contract, the Class A-MFL Swap Contract and the Class A-JFL Swap Contract
only to the extent such costs and expenses were incurred in accordance with
Section 6.12; provided, that the Paying Agent
138
shall only be permitted to incur and reimburse itself out of the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account and the Class A-JFL
Floating Rate Account, respectively, with respect to any such costs and expenses
which are in excess of any termination payment received from the Swap
Counterparty and not otherwise applied to offset the expense of entering into a
replacement Swap Contract if it has received the written consent of 100% of the
holders of the Class A-2FL Certificates, the Class A-MFL Certificates or the
Class A-JFL Certificates, respectively, or has received a Rating Agency
Confirmation (with respect to the Class A-2FL Certificates, the Class A-MFL
Certificates or the Class A-JFL Certificates, respectively) from each Rating
Agency (the expense of such confirmation to be paid by the holders of the Class
A-2FL Certificates, the Class A-MFL Certificates or the Class A-JFL
Certificates, as the case may be); and
(v) to clear and terminate the Class A-2FL Floating Rate
Account, the Class A-MFL Floating Rate Account or the Class A-JFL Floating Rate
Account pursuant to Section 9.1.
(d) Pursuant to Section 8.31(b), Section 8.32(b) or Section 8.33
(b), as applicable, on the second Business Day prior to each Distribution Date
the Paying Agent shall notify the Master Servicer of the amount of any payments
from the Master Servicer's Class A-2FL Floating Rate Account, the Master
Servicer's Class A-MFL Floating Rate Account or the Master Servicer's Class
A-JFL Floating Rate Account to be made to the Swap Counterparty on or before
3:00 p.m. New York time on each Master Servicer Remittance Date, and the Master
Servicer shall cause such payments to be made in accordance with the Master
Servicer's respective duties under Section 8.31(b), 8.32(b) or 8.33(b) , as
applicable, of this Agreement and wire instructions set forth in the Paying
Agent's notice which shall conform to the related Swap Contract.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date (in the aggregate and by
Loan Group, as appropriate), based on information provided in monthly reports
prepared by the Master Servicer and the Special Servicer and delivered to the
Paying Agent by the Master Servicer (no later than 1:00 p.m., New York time on
the Report Date), the Paying Agent shall make available to the general public
via its internet website initially located at "xxx.xxxxxxx.xxx" (the "Paying
Agent's Website"), (i) the Monthly Certificateholders Report (substantially in
the form of Exhibit M), (ii) a report containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth in Appendix I to the Final Prospectus Supplement and shall be
presented in tabular format substantially similar to the format utilized in such
Appendix I which report may be included as part of the Monthly
Certificateholders Report, (iii) the Loan Periodic Update File, Loan Setup File,
Bond Level File and the Collateral Summary File, (iv) the CMSA Advance Recovery
Report, (v) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (vi) as a convenience for
interested parties (and not in furtherance of the distribution thereof under the
securities laws), the Final Prospectus Supplement and this Agreement. In
addition, the Paying Agent will make available on its website any reports of
Forms 10-D, 10-K and 8-K promptly after they have been prepared and filed by the
Paying Agent with respect to the Trust through the XXXXX system.
139
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in September 2007). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder, each of the parties to this Agreement, each of the
Rating Agencies, each of the Financial Market Publishers, each of the
Underwriters, the Operating Adviser, the Placement Agent, any prospective
purchaser of the Certificates and any Certificate Owner upon receipt (which may
be in electronic form) from such person of an Investor Certificate in the form
of Exhibit Y, and any other person upon the direction of the Depositor, the
Placement Agent or any Underwriter. For assistance with the above-mentioned
Paying Agent services, Certificateholders or any party hereto may initially call
(000) 000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer, the Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder (or holder of a
Serviced Companion Mortgage Loan or B Note) that is a savings association, bank,
or insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of a Serviced
Companion Mortgage Loan or B Note) such reports and access to non-privileged
information and documentation regarding the Mortgage Loans and the Certificates
as such Certificateholder (or such holder of a Serviced Companion Mortgage Loan
or B Note) may reasonably deem necessary to comply with applicable regulations
of the Office of Thrift Supervision or successor or other regulatory authorities
with respect to investment in the Certificates; provided that the Paying Agent
shall be entitled to be reimbursed by such Certificateholder (or such holder of
a Serviced Companion Mortgage Loan or B Note) for the Paying Agent's actual
expenses incurred in providing such reports and access. The holder of a B Note
shall be entitled to receive information and documentation only with respect to
its related A/B Mortgage Loan and the holder of a Serviced Companion Mortgage
Loan shall be entitled to receive information and documentation only with
respect to its related Loan Pair, pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each
Person who at any time during the calendar year was a Certificateholder of
record, customary information as the Paying Agent deems necessary or desirable
for such Holders to prepare their federal income tax returns.
140
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the
Financial Market Publishers, the Depositor, the Master Servicer, the Special
Servicer, any Primary Servicer, the Trustee, the Operating Adviser, any
Certificateholder, the Luxembourg Paying Agent, prospective Certificate Owner or
any Person reasonably designated by any Placement Agent, or any Underwriter upon
reasonable notice and during normal business hours, reasonable access to all
relevant, non-attorney privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all other relevant matters relating
to this Agreement, and access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating
Adviser, any Placement Agent or any Underwriter or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Paying
Agent of providing access or copies (including electronic or digital copies) of
any such information requested in accordance with the preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, the Placement Agent, the
Underwriters, each Rating Agency, the Special Servicer, the Depositor, and
solely as with respect to any A/B Mortgage Loan, the holder of the B Note and
solely as with respect to any Loan Pair, the holder of the Serviced Companion
Mortgage Loan, originals or copies of, among other things, any Phase I
Environmental Report or engineering report prepared or appraisals performed in
respect of each Mortgaged Property provided, however, that the Paying Agent
shall be permitted to require payment by the requesting party (other than either
Rating Agency or the Operating Adviser) of a sum sufficient to cover the
reasonable expenses actually incurred by the Paying Agent or the Trustee of
providing access or copies (including electronic or digital copies) of any such
information reasonably requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall
perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool, the Class A-2FL Grantor Trust, the Class
A-MFL Grantor Trust, the Class A-JFL Grantor Trust and the Excess Interest
Grantor Trust under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Consistent with this Pooling and Servicing Agreement, the Paying Agent shall
provide or cause to be provided (i) to the United States Treasury or other
Persons (including, but not limited to, the Transferor of a Class R-I, Class
R-II or Class R-III Certificate, to a Disqualified Organization or to an agent
that has acquired a Class R-I, Class R-II or Class R-III Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II or
Class R-III Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions; in the case of (i), subject to reimbursement of expenses
relating
141
thereto in accordance with Section 7.12. The Master Servicer shall on a timely
basis provide the Paying Agent with such information concerning the Mortgage
Loans as is necessary for the preparation of the tax or information returns or
receipts of each REMIC Pool, the Class A-2FL Grantor Trust, the Class A-MFL
Grantor Trust, the Class A-JFL Grantor Trust and the Excess Interest Grantor
Trust as the Paying Agent may reasonably request from time to time. The Special
Servicer is required to provide to the Master Servicer all information in its
possession with respect to the Specially Serviced Mortgage Loans in order for
the Master Servicer to comply with its obligations under this Section 5.5. The
Paying Agent shall be entitled to conclusively rely on any such information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a)
with respect to the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Trustee any unpaid fees, expenses and other amounts then required
to be paid pursuant to this Agreement, and then, to the Paying Agent, any unpaid
fees, expenses and other amounts then required to be paid pursuant to this
Agreement, and then at the written direction of the Master Servicer, withdraw
from the Distribution Account and pay to the Master Servicer, any Primary
Servicer and Special Servicer any unpaid servicing compensation or other amounts
currently required to be paid pursuant to this Agreement (to the extent not
previously retained or withdrawn by the Master Servicer from the Certificate
Account), and (2) second, make distributions in the manner and amounts set forth
below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Certificates of such Class in proportion to
their respective initial Certificate Balances or Percentage Interests for the
Class X Certificates.
SECTION 6.2 REMIC I.
142
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Class A-2FL Net Swap
Payment, Class A-MFL Net Swap Payment or Class A-JFL Net Swap Payment, as
applicable, that was deemed distributed by the Paying Agent to the Master
Servicer's Class A-2FL Floating Rate Account, the Master Servicer's Class A-MFL
Floating Rate Account or the Master Servicer's Class A-JFL Floating Rate Account
on the immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b), Section 8.32(b) or Section 8.33(b), as applicable) to itself on behalf
of the Trustee, as holder of the REMIC I Regular Interests, for the following
purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest (other than any Excess Interest) collected or deemed
collected on or with respect to each Mortgage Loan or related REO Property,
Distributable Certificate Interest to each Corresponding REMIC I Regular
Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or related REO Property, principal to the Corresponding REMIC
I Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining amount of the Available Distribution
Amount with respect to each Mortgage Loan (other than with respect to any Excess
Interest) or related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests, plus interest on such Realized
Losses at the related REMIC I Net Mortgage Rate previously allocated thereto;
and
(iv) thereafter, to the Class R-I Certificateholders at such
time as the Certificate Balance of all Classes of REMIC I Regular Interests have
been reduced to zero, and Realized Losses (including interest thereon)
previously allocated thereto have been reimbursed to the Holders of the REMIC I
Regular Interests, any amounts of the Available Distribution Amount remaining
with respect to each Mortgage Loan (other than with respect to any Excess
Interest) or related REO Property, to the extent of the Trust's interest
therein.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Class A-2FL Net Swap
Payment, Class A-MFL Net Swap Payment or Class A-JFL Net Swap Payment, as
applicable, that was deemed distributed by the Paying Agent to the Master
Servicer's Class A-2FL Floating Rate Account, the Master Servicer's Class A-MFL
Floating Rate Account or the Master Servicer's Class A-JFL Floating Rate Account
on the immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b), Section 8.32(b) or Section 8.33(b), as applicable) to itself on behalf
of the Trustee, as holder of the REMIC II Regular Interests, amounts
distributable to any Class of Principal Balance Certificates, or in the case of
the Class A-2FL Certificates, the Class A-MFL Certificates or the Class A-JFL
Certificates, distributable to the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest or the Class A-JFL Regular Interest, respectively, pursuant to
Section 6.5 or Section 10.1 to its Corresponding REMIC II Regular Interest set
forth in the Preliminary Statement hereto.
143
(b) All distributions made in respect of the Class X Certificates
on each Distribution Date pursuant to Section 6.5 or Section 10.1, and allocable
to any particular REMIC III Regular Interest in accordance with the definitions
of "Class X Strip Rate" shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of such Class's Corresponding REMIC II Regular
Interest. All distributions of reimbursements of Realized Losses made in respect
of any Class of Principal Balance Certificates, the Class A-2FL Regular Interest
(in the case of the Class A-2FL Certificates), the Class A-MFL Regular Interest
(in the case of the Class A-MFL Certificates) or the Class A-JFL Regular
Interest (in the case of the Class A-JFL Certificates) on each Distribution Date
pursuant to Section 6.5 shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of its Corresponding REMIC II Regular Interest
set forth in the Preliminary Statement hereto. Any amounts remaining in the
Distribution Account with respect to REMIC II on any Distribution Date after the
foregoing distributions shall be distributed to the holders of the Class R-II
Certificates.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III AND EXCESS INTEREST GRANTOR TRUST.
(a) On each Distribution Date, the Paying Agent shall withdraw
from the Distribution Account an amount equal to the Available Distribution
Amount and shall distribute such amount (other than the amount attributable to
any Excess Liquidation Proceeds, which shall be distributed in accordance with
Section 6.5(b), any Excess Interest, which shall be distributed in accordance
with Section 6.5(c), an amount equal to any Class A-2FL Net Swap Payment that
was deemed distributed in respect of the Class A-2FL Regular Interest on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b), an amount equal to any Class A-MFL Net Swap Payment that was deemed
distributed in respect of the Class A-MFL Regular Interest on the immediately
preceding Master Servicer Remittance Date pursuant to Section 8.32(b) and an
amount equal to any Class A-JFL Net Swap Payment that was deemed distributed in
respect of the Class A-JFL Regular Interest on the immediately preceding Master
Servicer Remittance Date pursuant to Section 8.33(b), which shall be distributed
in accordance with Section 6.13) in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates and Class X Certificates and the Class
A-2FL Regular Interest, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
A-5 Certificates and the Class A-2FL Regular Interest, the
Distributable Certificate Interest in respect of each such Class for
such Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 1), pro
rata in proportion to the Distributable Certificate Interest payable
in respect of each such Class;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2); and
144
(C) to the Holders of the Class X Certificates, the
Distributable Certificate Interest in respect of that Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 1 and Loan
Group 2);
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in full the
total amount of interest to be distributed with respect to any of the Class A
Senior Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest or the Class X Certificates on such Distribution Date as set
forth above, the Available Distribution Amount will be allocated among all those
Classes pro rata in proportion to the respective amounts of interest payable
thereon for such Distribution Date, without regard to Loan Group;
(ii) concurrently:
(A) to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-4 and Class A-5 Certificates and the Class A-2FL Regular
Interest: first to the Holders of the Class A-1 Certificates, the
Loan Group 1 Principal Distribution Amount for such Distribution
Date and, after the Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount for such Distribution Date, until the Aggregate
Certificate Balance of the Class A-1 Certificates has been reduced
to zero; the portion of the Loan Group 2 Principal Distribution
Amount distributed hereunder shall be reduced by any portion thereof
distributed to the Holders of the Class A-1A Certificates (solely
with respect to the Loan Group 2 Principal Distribution Amount);
second upon payment in full of the Aggregate Certificate Balance of
the Class A-1 Certificates, to the Holders of the Class A-2
Certificates and the Class A-2FL Regular Interest, pro rata, the
Loan Group 1 Principal Distribution Amount for such Distribution
Date and, after the Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the Aggregate Certificate Balances of the
Class A-2 Certificates and the Class A-2FL Regular Interest have
been reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder shall be reduced by any portion thereof
distributed to the Holders of the Class A-1 Certificates and (solely
with respect to the Loan Group 2 Principal Distribution Amount) the
Class A-1A Certificates; third upon payment in full of the Aggregate
Certificate Balances of the Class A-2 Certificates and the Class
A-2FL Regular Interest, to the Holders of the Class A-3
Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, until the Aggregate Certificate
Balance of the Class A-3 Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and Loan
Group 2 Principal Distribution Amount distributed hereunder will be
reduced by any portion thereof distributed to the Holders of the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-2FL
Regular Interest and (solely with respect to the Loan Group 2
Principal Distribution Amount) the Class A-1A Certificates; fourth
upon payment in full of the Aggregate Certificate
145
Balance of the Class A-3 Certificates, to the Holders of the Class
A-4 Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, until the Aggregate Certificate
Balance of the Class A-4 Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and Loan
Group 2 Principal Distribution Amount distributed hereunder shall be
reduced by any portion thereof distributed to the Holders of the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-2FL
Regular Interest, the Class A-3 Certificates and (solely with
respect to the Loan Group 2 Principal Distribution Amount) the Class
A-1A Certificates; fifth upon payment in full of the Aggregate
Certificate Balance of the Class A-4 Certificates, to the Holders of
the Class A-5 Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, until the Aggregate
Certificate Balance of the Class A-5 Certificates has been reduced
to zero; the portion of the Loan Group 1 Principal Distribution
Amount and Loan Group 2 Principal Distribution Amount distributed
hereunder shall be reduced by any portion thereof distributed to the
Holders of the Class A-1 Certificates, the Class A-2 Certificates,
the Class A-2FL Regular Interest, the Class A-3 Certificates, the
Class A-4 Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) the Class A-1A Certificates; and
(B) to the Holders of the Class A-1A Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balance of the Class A-5 Certificates has
been reduced to zero, the Loan Group 1 Principal Distribution Amount
for such Distribution Date, until the Aggregate Certificate Balance
of the Class A-1A Certificates has been reduced to zero; the portion
of the Loan Group 1 Principal Distribution Amount shall be reduced
by any portion thereof distributed to the Holders of the Class A-1,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates and the
Class A-2FL Regular Interest;
(iii) to the Holders of the Class A Senior Certificates (other
than the Class A-2FL Certificates), the Class A-2FL Regular Interest and the
Class X Certificates, pro rata in proportion to their respective entitlements to
reimbursement described in this clause (treating principal and interest losses
separately), to reimburse any Realized Losses previously allocated thereto and
not previously fully reimbursed (in the case of the Class X Certificates,
insofar as Realized Losses have resulted in shortfalls in the amount of interest
distributed other than by reason of a reduction of the Notional Amount), plus
one month's interest at the applicable Pass-Through Rate on such Realized
Losses;
(iv) to the Holders of the Class A-M Certificates and the
Class A-MFL Regular Interest, pro rata, the Distributable Certificate Interest
in respect of such Classes of Certificates for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the
Class A-5 and Class A-1A Certificates, to the Holders of the Class A-M
Certificates and the Class A-MFL Regular Interest, pro rata, the Principal
Distribution Amount for such Distribution Date (reduced
146
by any prior distributions thereof hereunder), until the Certificate Balances of
the Class A-M Certificates and the Class A-MFL Regular Interest have been
reduced to zero;
(vi) to the Holders of the Class A-M Certificates and the
Class A-MFL Regular Interest, pro rata, to reimburse any Realized Losses
previously allocated thereto and not previously fully reimbursed, plus one
month's interest at the applicable Pass-Through Rate on such Realized Losses;
(vii) to the Holders of the Class A-J Certificates and the
Class A-JFL Regular Interest, pro rata, the Distributable Certificate Interest
in respect of such Classes for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the
Class A-M Certificates and the Class A-MFL Regular Interest, to the Holders of
the Class A-J Certificates and the Class A-JFL Regular Interest, pro rata, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balances of the Class
A-J Certificates and the Class A-JFL Regular Interest have been reduced to zero;
(ix) to the Holders of the Class A-J Certificates and the
Class A-JFL Regular Interest, pro rata, to reimburse any Realized Losses
previously allocated thereto and not previously fully reimbursed, plus one
month's interest at the applicable Pass-Through Rate on such Realized Losses;
(x) to the Holders of the Class B Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the
Class A-J Certificates and the Class A-JFL Regular Interest, to the Holders of
the Class B Certificates, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder), until
the Certificate Balance of the Class B Certificates has been reduced to zero;
(xii) to the Holders of the Class B Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xiii) to the Holders of the Class C Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(xv) to the Holders of the Class C Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
147
(xvi) to the Holders of the Class D Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the
Class C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xviii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xix) to the Holders of the Class E Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xxi) to the Holders of the Class E Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxii) to the Holders of the Class F Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the
Class E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxiv) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxv) to the Holders of the Class G Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxvii) to the Holders of the Class G Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
148
(xxviii) to the Holders of the Class H Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of
the Class G Certificates, to the Holders of the Class H Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxx) to the Holders of the Class H Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxi) to the Holders of the Class J Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of
the Class H Certificates, to the Holders of the Class J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class J
Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxiv) to the Holders of the Class K Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of
the Class J Certificates, to the Holders of the Class K Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class K
Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class K Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxvii) to the Holders of the Class L Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of
the Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxix) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
149
(xl) to the Holders of the Class M Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xli) upon payment in full of the Certificate Balance of
the Class L Certificates, to the Holders of the Class M Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class M
Certificates has been reduced to zero;
(xlii) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xliii) to the Holders of the Class N Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xliv) upon payment in full of the Certificate Balance of
the Class M Certificates, to the Holders of the Class N Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xlv) to the Holders of the Class N Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xlvi) to the Holders of the Class O Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of
the Class N Certificates, to the Holders of the Class O Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class O Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xlix) to the Holders of the Class P Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(l) upon payment in full of the Certificate Balance of
the Class O Certificates, to the Holders of the Class P Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class P
Certificates has been reduced to zero;
(li) to the Holders of the Class P Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
150
(lii) to the Holders of the Class Q Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(liii) upon payment in full of the Certificate Balance of
the Class P Certificates, to the Holders of the Class Q Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class Q
Certificates has been reduced to zero;
(liv) to the Holders of the Class Q Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(lv) to the Holders of the Class S Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(lvi) upon payment in full of the Certificate Balance of
the Class Q Certificates, to the Holders of the Class S Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class S
Certificates has been reduced to zero;
(lvii) to the Holders of the Class S Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses; and
(lviii) to the Holders of the Class R-III Certificates at
such time as the Certificate Balances of all Classes of REMIC Regular
Certificates, the Class A-2FL Regular Interest, the Class A-MFL Regular Interest
and the Class A-JFL Regular Interest have been reduced to zero, and Realized
Losses (including interest thereon) previously allocated to each Holder have
been reimbursed to the Holders of the REMIC Regular Certificates, the Class
A-2FL Regular Interest, the Class A-MFL Regular Interest and the Class A-JFL
Regular Interest, any amounts remaining of Available Distribution Amount on
deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Aggregate Certificate
Balance of all Classes of Subordinate Certificates have been reduced to zero or
the aggregate Appraisal Reduction in effect is greater than or equal to the
Aggregate Certificate Balance of all Classes of Subordinate Certificates, the
Principal Distribution Amount shall be distributed, first, to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates and the Class A-2FL Regular Interest, pro rata, based on their
respective Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero;
and, second, to the Holders of the Class A-1, Class A-1A, Class A-2, Class A-3,
Class A-4 and Class A-5 Certificates and the Class A-2FL Regular Interest, pro
rata, based on the respective amounts of unreimbursed Realized Losses previously
allocated to each such Class, plus interest on such Realized Losses at
one-twelfth the applicable Pass-Through Rate. A similar rule shall apply to the
distribution of the Principal Distribution Amount to REMIC II Regular Interests.
151
(b) On each Distribution Date, the Paying Agent shall withdraw
amounts in the Reserve Account and shall pay the Certificateholders, the Class
A-2FL Regular Interest, the Class A-MFL Regular Interest and the Class A-JFL
Regular Interest on such Distribution Date such amounts in the following
priority:
(i) First, to reimburse Holders of the Principal Balance
Certificates (other than the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates), the Class A-2FL Regular
Interest, the Class A-MFL Regular Interest and the Class A-JFL Regular Interest,
in order of alphabetical Class designation, (provided that the Class A-M
Certificates and the Class A-MFL Regular Interest (and correspondingly, the
Class A-MFL Certificates) shall be pro rata with each other and senior in right
to the Class A-J Certificates and the Class A-JFL Regular Interest (and
correspondingly, the Class A-JFL Certificates), which shall be pro rata with
each other) for any, and to the extent of, Unpaid Interest then owing to such
Classes;
(ii) Second, to reimburse the Holders of the Principal
Balance Certificates (other than the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates), the Class A-2FL Regular
Interest, the Class A-MFL Regular Interest and the Class A-JFL Regular Interest,
in order of alphabetical Class designation, (provided that the Class A-M
Certificates and the Class A-MFL Regular Interest (and correspondingly, the
Class A-MFL Certificates) shall be pro rata with each other and senior in right
to the Class A-J Certificates and the Class A-JFL Regular Interest (and
correspondingly, the Class A-JFL Certificates), which shall be pro rata with
each other) for any, and to the extent of, Realized Losses previously allocated
to them; and
(iii) Third, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates (other than the Class A-2FL
Certificates, the Class A-MFL Certificates and the Class A-JFL Certificates),
the Class A-2FL Regular Interest, the Class A-MFL Regular Interest and the Class
A-JFL Regular Interest to zero, to pay any amounts remaining on deposit in such
account to the Special Servicer as additional Special Servicer Compensation.
This Section 6.5(b)(i), (ii) and (iii) shall apply mutatis mutandis
to reimbursement of Realized Losses previously allocated to the REMIC II Regular
Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw
from the Excess Interest Sub-account any Excess Interest on deposit therein, and
the Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class T Certificates.
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
152
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances and treated as
Realized Principal Losses to the extent so allocated (and shall proportionately
reduce the Certificate Balance of each REMIC I Regular Interest) after making
all other allocations for such Distribution Date.
(b) If the Master Servicer, the Special Servicer or the Trustee
determines that an Advance previously made by it (whether such Advance (together
with Advance Interest thereon) was in respect of principal or interest on the
related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance and
the Master Servicer withdraws the amount of such Advance from the Certificate
Account pursuant to Section 5.2(a) hereof (which amount shall be treated as an
Available Advance Reimbursement Amount pursuant to Section 4.6) or if the Master
Servicer determines that any Unliquidated Advance has become a Nonrecoverable
Advance, the Master Servicer (after consultation with the Special Servicer)
shall compute the Realized Loss with respect to such Mortgage Loan (and the
Paying Agent shall allocate the Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall
be treated as Realized Principal Losses up to the amount of the aggregate amount
in the Collection Account allocable to principal received with respect to the
Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount, and shall be allocated to the
Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and
to the extent that any Realized Principal Loss exceeds the Certificate Balance
of the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal would
otherwise be paid on such Distribution Date, in proportion to such principal
payments; and
(ii) if the amount that the Master Servicer withdraws from
the Certificate Account as referenced in clause (b)(i) above exceeds such amount
allocable to principal received with respect to the Mortgage Loans for such
Collection Period, then such additional amounts shall constitute Unpaid
Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata
basis based upon the amount of accrued and unpaid interest thereon.
(c) If (x) a Final Recovery Determination is made with respect to
any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances and Realized Losses were
computed and allocated pursuant to clauses (a) and (b) above, and (y) amounts
are recovered thereafter:
153
(i) the portion of the amount of collections recovered on
the Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal shall be applied by the Paying Agent first, to make
payments of principal on the Corresponding REMIC I Regular Interest up to an
amount equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest (and
the Principal Balance of the Mortgage Loan and the related Certificate Balance
of the Corresponding REMIC I Regular Interest shall be correspondingly
increased), and thereafter to make payments of principal to the Corresponding
REMIC I Regular Interests with respect to which principal distributions were
reduced pursuant to Section 6.6(b)(i) above, in proportion to the amount of such
reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan
that is identified and applied by the Master Servicer as recoveries of interest
shall be applied by the Paying Agent to make payments of Unpaid Interest on the
REMIC I Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses on
the REMIC I Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the Corresponding REMIC II Regular Interests in the amounts and in the manner
as are allocated to the REMIC III Regular Interests related thereto pursuant to
Section 6.6(f); provided, however, that Realized Losses shall be allocated among
two or more Corresponding REMIC II Regular Interests that correspond to a Class
of Principal Balance Certificates sequentially in alphabetical and numerical
order. Realized Losses allocated to the Class X Certificates shall reduce the
amount of interest payable on the REMIC II Regular Interests, which reduction
shall be allocated pro rata based on the product of the Certificate Balance of
such REMIC II Regular Interest and the Class X Strip Rate applicable to the
Class of REMIC III Regular Interest (other than the Class X Certificates)
relating to such REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on
the REMIC II Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the REMIC III Regular Interests in Reverse Sequential Order, in each case
reducing (A) first, the Certificate Balance of such Class until such Certificate
Balance is reduced to zero (in the case of the REMIC III Regular Interests other
than the Class X Certificates); (B) second, Unpaid Interest owing to such Class
to the extent thereof and (C) third, Distributable Certificate Interest owing to
such Class, provided, that such reductions shall be allocated among the Class
A-1 Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates and Class X Certificates, pro rata, based upon their outstanding
Certificate Balances or accrued interest, as the case may be, and provided
further, that Realized Losses shall not reduce the Aggregate Certificate Balance
of the REMIC III Regular Interests below the sum of the Aggregate Certificate
Balances of the REMIC II Regular Interests. Losses of interest allocated to the
Class A-2FL Regular Interest, the Class A-MFL Regular Interest or the Class
A-JFL Regular Interest reduce the interest distributable to the Class A-2FL
Certificates, the Class A-MFL Certificates or the Class A-JFL Certificates,
respectively, by an equivalent amount. Losses of principal that reduce the
Certificate Balance of the Class A-2FL Regular Interest, the
154
Class A-MFL Regular Interest or the Class A-JFL Regular Interest reduce the
Aggregate Certificate Balance of the Class A-2FL Certificates, the Class A-MFL
Certificates or the Class A-JFL Certificates, respectively, by an equivalent
amount.
SECTION 6.7 PREPAYMENT INTEREST SHORTFALLS AND NET AGGREGATE
PREPAYMENT INTEREST SHORTFALLS. On each Distribution Date, the amount of any Net
Aggregate Prepayment Interest Shortfalls in REMIC I shall be allocated among the
REMIC I Regular Interests, pro rata in proportion to the Accrued Certificate
Interest for each such REMIC I Regular Interest for such Distribution Date and
shall reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any Net Aggregate Prepayment Interest
Shortfalls in REMIC II shall be allocated among the REMIC II Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC
II Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, the
amount of any Net Aggregate Prepayment Interest Shortfalls in the REMIC II
Regular Interests in REMIC III, shall be allocated to each Class of REMIC III
Regular Interests, pro rata, in proportion to the amount of Accrued Certificate
Interest payable to such Class on such Distribution Date and shall reduce the
Distributable Certificate Interest for such Class for such Distribution Date. No
Prepayment Interest Shortfall with respect to a Serviced Companion Mortgage Loan
or a B Note shall be allocated to any Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing
Fee payable to the Master Servicer shall be adjusted as provided in Section
8.10(c) herein. Any amount retained by REMIC I as a result of a reduction of the
Master Servicing Fee shall be treated as interest collected with respect to the
prepaid Mortgage Loans with respect to which the Master Servicing Fee adjustment
occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on
which an Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan, Loan
Pair or A/B Mortgage Loan, if the Principal Balance of such Mortgage Loan, Loan
Pair or A/B Mortgage Loan exceeds $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such Mortgage Loan, Loan Pair or A/B Mortgage Loan becomes a Required
Appraisal Loan; provided that if the Special Servicer had completed or obtained
an Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property after receipt of the notice described in clause (ii) of the definition
of Appraisal Event, such Appraisal shall be obtained no later than 60 days after
receipt of such notice and an internal valuation shall be obtained no later than
60 days after receipt of such notice. Notwithstanding the foregoing, an
Appraisal shall not be required so long as a guaranty or surety bond that is
rated at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization, or debt service reserve or a letter of credit is available
and has the ability to pay off the then outstanding Principal Balance of the
Mortgage Loan in full, except to the extent that the Special Servicer, in
accordance with the Servicing Standard, determines that obtaining an Appraisal
is in the best interests of the Certificateholders. Such Appraisal or valuation
shall be conducted in accordance
155
with the definition of "market value" as set forth in 12 C.F.R. ss. 225.62 and
shall be updated at least annually to the extent such Mortgage Loan remains a
Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the Special Servicer, shall be an expense of the Trust (and any
related B Note) and may be paid from REO Income or, to the extent collections
from such related Mortgage Loan, B Note, Loan Pair or Mortgaged Property does
not cover the expense, such unpaid expense shall be, subject to Section 4.4
hereof, advanced by the Master Servicer at the request of the Special Servicer
or by the Special Servicer pursuant to Section 4.2 in which event it shall be
treated as a Servicing Advance. The Special Servicer shall calculate any
Appraisal Reduction. The Special Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan, B Note and Loan Pair based on updated
Appraisals or internal valuations and report such amount to the Trustee
annually. Notwithstanding the foregoing, the terms of this Section 6.9 shall not
be applicable to any Non-Serviced Mortgage Loan if the applicable Non-Serviced
Mortgage Loan Special Servicer shall have performed such obligations with
respect to such Mortgage Loan pursuant to the terms of the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Paying Agent on behalf of the Trustee shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest,
original issue discount, or other amounts that the Paying Agent reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for any such withholding and any amount so withheld shall be
regarded as distributed to the related Certificateholders for purposes of this
Agreement. In the event the Paying Agent withholds any amount from payments made
to any Certificateholder pursuant to federal withholding requirements, the
Paying Agent shall indicate to such Certificateholder the amount withheld. The
Trustee shall not be responsible for the Paying Agent's failure to comply with
any withholding requirements.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note or Serviced Companion Mortgage
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the Holder of the related Serviced Companion Mortgage Loan, as applicable)
during any particular Collection Period shall be deemed distributed to the
Trustee by the Paying Agent on the following Distribution Date as follows: (i)
first, the Paying Agent shall be deemed to distribute to the Trustee, as holder
of the REMIC I Regular Interest to which such Mortgage Loan relates, any
Prepayment Premiums collected on or with respect to such Mortgage Loan; and (ii)
second, the Paying Agent shall be deemed to distribute to the Trustee, as holder
of the REMIC II Regular Interests, any Prepayment Premiums deemed distributed to
the REMIC I Regular Interests, and shall be deemed to distribute such Prepayment
Premiums to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums shall be deemed
distributed among such Classes pro rata in accordance with the relevant amounts
of entitlements to distributions of principal). Following such deemed
distributions, in respect of any Prepayment Premiums collected in respect of
each Mortgage Loan included in Loan Group 1 during the related Collection
Period, the Holders of the respective Classes of Principal Balance Certificates
(other than the Class A-1A, Class A-2FL, Class A-MFL, Class A-JFL, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates), the Class A-2FL Regular
156
Interest, the Class A-MFL Regular Interest and the Class A-JFL Regular Interest,
then entitled to distributions of principal from the Principal Distribution
Amount for such Distribution Date, shall be entitled to, and the Paying Agent on
behalf of the Trustee will pay to such Holder(s), an amount equal to, in the
case of each such Class, the product of (a) a fraction, the numerator of which
is the amount distributed as principal to the Holders of that Class on that
Distribution Date, and the denominator of which is the total amount distributed
as principal to the Holders of all such Classes of Certificates on that
Distribution Date, (b) the Base Interest Fraction for the related Principal
Prepayment and that Class of Certificates and (c) the aggregate amount of all
such Prepayment Premiums collected during the related Collection Period.
Following such deemed distributions, in respect of any Prepayment Premiums
collected in respect of each Mortgage Loan included in Loan Group 2 during the
related Collection Period, the Holders of the Class A-1A Certificates, then
entitled to distributions of principal from the Principal Distribution Amount
for such Distribution Date, shall be entitled to, and the Paying Agent on behalf
of the Trustee will pay to such Holder(s), an amount equal to the product of (a)
the Base Interest Fraction for the related Principal Prepayment and that Class
of Certificates and (b) the aggregate amount of Prepayment Premiums collected
during the related Collection Period. Any portion of such Prepayment Premium
that is not so distributed to the Holders of such Principal Balance Certificates
or the Class A-2FL Regular Interest, the Class A-MFL Regular Interest or the
Class A-JFL Regular Interest shall be distributed to the Holders of the Class X
Certificates. For so long as the Class A-2FL Swap Contract, the Class A-MFL Swap
Contract and the Class A-JFL Swap Contract, or any replacement Swap Contract,
are in effect, the Prepayment Premium allocated to the Class A-2FL Regular
Interest, the Class A-MFL Regular Interest and the Class A-JFL Regular Interest
shall be payable to the Swap Counterparty pursuant to the terms of the related
Swap Contract. If the Class A-2FL Swap Contract, the Class A-MFL Swap Contract,
the Class A-JFL Swap Contract or any replacement Swap Contract is no longer in
effect, any Prepayment Premium allocated to the Class A-2FL Regular Interest,
the Class A-MFL Regular Interest or the Class A-JFL Regular Interest shall be
distributed to the Class A-2FL Certificates, the Class A-MFL Certificates or the
Class A-JFL Certificates, respectively.
SECTION 6.12 OTHER DISTRIBUTIONS. On each Master Servicer
Remittance Date, the Paying Agent shall be deemed to distribute to the Master
Servicer, for deposit in the Master Servicer's Floating Rate Account with
respect to Class A-2FL Net Swap Payments, the Class A-MFL Net Swap Payments and
Class A-JFL Net Swap Payment, that amount specified by the Paying Agent pursuant
to Section 8.31(b), Section 8.32(b) and Section 8.33(b), as applicable. The
Master Servicer shall offset and retain such amount from the payment it delivers
to the Paying Agent on the Master Servicer Remittance Date pursuant to Section
5.2(a)(xi) and shall deposit such amount, on behalf of the Trustee, in the
Master Servicer's Class A-2FL Floating Rate Account, the Master Servicer's Class
A-MFL Floating Rate Account and the Master Servicer's Class A-JFL Floating Rate
Account, as applicable, and such payment shall be deemed to have been made by
the Paying Agent as a payment of a portion of the interest and Prepayment
Premiums, as applicable, on the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest, respectively. On each
Distribution Date, the Paying Agent shall distribute the Class A-2FL Available
Funds for such Distribution Date to the Holders of record of the Class A-2FL
Certificates as of the related Record Date in the following amounts: (i) the
Class A-2FL Interest Distribution Amount, (ii) the Class A-2FL Principal
Distribution Amount, (iii) to reimburse the Holders of the Class A-2FL
Certificates for any Realized Losses previously allocated to the Class A-2FL
Regular Interest and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate of the Class A-2FL Regular
157
Interest on such Realized Losses and (iv) only if the Class A-2FL Swap Contract
has been terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-2FL Regular Interest. On
each Distribution Date, the Paying Agent shall distribute the Class A-MFL
Available Funds for such Distribution Date to the Holders of record of the Class
A-MFL Certificates as of the related Record Date in the following amounts: (i)
the Class A-MFL Interest Distribution Amount, (ii) the Class A-MFL Principal
Distribution Amount, (iii) to reimburse the Holders of the Class A-MFL
Certificates for any Realized Losses previously allocated to the Class A-MFL
Regular Interest and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate of the Class A-MFL Regular Interest on such
Realized Losses and (iv) only if the Class A-MFL Swap Contract has been
terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-MFL Regular Interest. On
each Distribution Date, the Paying Agent shall distribute the Class A-JFL
Available Funds for such Distribution Date to the Holders of record of the Class
A-JFL Certificates as of the related Record Date in the following amounts: (i)
the Class A-JFL Interest Distribution Amount, (ii) the Class A-JFL Principal
Distribution Amount, (iii) to reimburse the Holders of the Class A-JFL
Certificates for any Realized Losses previously allocated to the Class A-JFL
Regular Interest and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate of the Class A-JFL Regular Interest on such
Realized Losses and (iv) only if the Class A-JFL Swap Contract has been
terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-JFL Regular Interest. No
Holder of a Class A-2FL Certificate, a Class A-MFL Certificate or a Class A-JFL
Certificate shall be entitled to receive any portion of any Prepayment Premium
paid on the Class A-2FL Regular Interest, the Class A-MFL Regular Interest or
the Class A-JFL Regular Interest, respectively, unless the related Swap Contract
has been terminated and no replacement Swap Contract has been entered into. Such
amount shall be payable to the Swap Counterparty pursuant to the terms of the
related Swap Contract. Following a Swap Default under the related Swap Contract
or other default or event of termination of the related Swap Contract, and
during the period when the Paying Agent is pursuing remedies under such related
Swap Contract, the Class A-2FL Interest Distribution Amount for each Class A-2FL
Certificate, the Class A-MFL Interest Distribution Amount for each Class A-MFL
Certificate and the Class A-JFL Interest Distribution Amount for each Class
A-JFL Certificate shall equal the Distributable Certificate Interest Amount for
the Class A-2FL Regular Interest, the Distributable Certificate Interest Amount
for the Class A-MFL Regular Interest and the Distributable Certificate Interest
Amount for the Class A-JFL Regular Interest, respectively, until such time as
the conditions giving rise to such Swap Default or other default or event of
termination have been cured or such related Swap Contract has been replaced. Any
such Swap Default, other default or event of termination, and the consequent
change to a fixed Pass-Through Rate shall not constitute a default under this
Agreement. To the extent that The Depository Trust Company is not provided with
sufficient notice of a change to a fixed Pass-Through Rate, a Swap Default can
result in a delay in the distribution of amounts payable to the Class A-2FL
Certificates, the Class A-MFL Certificates and the Class A-JFL Certificates and
such delay will not constitute a default by any party to this Agreement nor
result in the accrual of interest on such delayed payment and no party hereto
shall be obligated to advance such amounts. Notwithstanding the foregoing, to
the extent provided in the related Swap Contract, the Swap Counterparty will
remain liable for such Swap Default or other default or event of termination
pursuant to the related Swap Contract.
158
For as long as a Swap Default or other default or event of
termination has occurred and is continuing and a Class A-2FL Certificate, Class
A-MFL Certificate or Class A-JFL Certificate is receiving interest at the fixed
Pass-Through Rate, such Class A-2FL Certificate, Class A-MFL Certificate or
Class A-JFL Certificate, shall accrue interest at the same rate, on the same
basis and in the same manner as the related Class A-2FL Regular Interest, the
Class A-MFL Regular Interest or Class A-JFL Regular Interest, as the case may
be.
If the related Swap Contract becomes subject to early termination
due to the occurrence of a Rating Agency Trigger Event, a Swap Default, an event
of default or a termination event thereunder, the Paying Agent on behalf of the
Trustee shall promptly provide written notice to the Depository, the Holders of
the Class A-2FL Certificates, the Holders of the Class A-MFL Certificates or the
Holders of the Class A-JFL Certificates, and the Paying Agent shall take such
commercially reasonable actions (following the expiration of any applicable
grace period), unless otherwise directed in writing by the holders of 100% of
the Class A-2FL Certificates, 100% of the Class A-MFL Certificates or 100% of
the Class A-JFL Certificates, as the case may be (and only to the extent that,
and only for so long as, doing so does not lead the Paying Agent to incur
expenses in excess of the amounts available to it from such holders for
reimbursement), to enforce the rights of the Trust under the related Swap
Contract as may be permitted by the terms of the related Swap Contract and
consistent with the terms hereof, and shall apply the proceeds collected from
the Swap Counterparty in connection with any such actions (including, without
limitation, the proceeds of the liquidation of any collateral pledged by the
Swap Counterparty) to enter into a replacement interest rate swap contract on
substantially identical terms or on such other terms acceptable to the Rating
Agencies. The Paying Agent shall be permitted (subject to the final two
paragraphs of this Section 6.12) to retain and rely upon investment banking
firms of national reputation in connection with identifying and entering into
any replacement interest rate swap contracts, and the Paying Agent's reliance on
the advice of such investment banking firms shall provide full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice. Each
Rating Agency shall confirm in writing that the execution and delivery of any
proposed interest rate swap contract 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
will exceed the sum of the net proceeds of the liquidation of the related Swap
Contract, a replacement interest rate swap contract shall not be entered into.
Prior to the application of any proceeds in accordance with the terms of this
paragraph, such proceeds shall be deposited in segregated trust accounts, which
shall be an Eligible Account, established by the Paying Agent and identified as
held in trust for the benefit of the Certificateholders of the Class A-2FL
Certificates, of the Certificateholders of the Class A-MFL Certificates and of
the Certificateholders of the Class A-JFL Certificates, respectively. Any
proceeds of the liquidation of the related Swap Contract which exceed the costs
attributable to entering into a replacement interest rate swap contract (or if
no replacement interest rate swap contract is entered into) shall be deposited
into the Class A-2FL Floating Rate Account, the Class A-MFL Floating Rate
Account or the Class A-JFL Floating Rate Account and shall be distributed to the
holders of the Class A-2FL Certificates, the holders of the Class A-MFL
Certificates or the holders of the Class A-JFL Certificates, as applicable.
The Trustee and the Paying Agent shall be entitled to conclusively
rely on the report from the Swap Counterparty that specifies LIBOR for any
Interest Accrual Period.
159
As long as the related Swap Contract (or any replacement thereof) is
in effect, each beneficial owner of a Class A-2FL Certificate, a Class A-MFL
Certificate or a Class A-JFL Certificate, or any interest therein, shall be
deemed to have represented that either (i) it is not an employee benefit plan
subject to Title I of ERISA, a plan subject to Section 4975 of the Code, or a
plan subject to any Similar Laws or any person investing on behalf of or with
plan assets of such employee benefit plan or plan or (ii) the acquisition and
holding of such Certificate are eligible for the exemptive relief available
under at least one of the Investor-Based Exemptions.
Notwithstanding anything herein to the contrary, any expenses
incurred by the Paying Agent under this Section 6.12 shall be paid solely by the
Class A-2FL Grantor Trust, the Class A-MFL Grantor Trust or the Class A-JFL
Grantor Trust, as applicable, after the application of funds held in the Class
A-2FL Floating Rate Account, the Class A-MFL Floating Rate Account or the Class
A-JFL Floating Rate Account, respectively, in accordance with Section 5.3(c),
but only upon the Paying Agent's determination that such expenses cannot be
recovered from the Swap Counterparty or any proceeds due under the related Swap
Contract; provided, that the Paying Agent shall only be permitted to incur any
costs and expenses which are in excess of any termination payment received from
the Swap Counterparty and not otherwise applied to offset the expense of
entering into a replacement Swap Contract if it has received the written consent
of 100% of the holders of the Class A-2FL Certificates, 100% of the holders of
the Class A-MFL Certificates or 100% of the holders of the Class A-JFL
Certificates, as the case may be, or has received a Rating Agency Confirmation
(with respect to the Class A-2FL Certificates, the Class A-MFL Certificates or
the Class A-JFL Certificates) from each Rating Agency (the expense of such
confirmation to be paid by the holders of the Class A-2FL Certificates, the
Class A-MFL Certificates or the Class A-JFL Certificates, respectively). Factors
that the Paying Agent may consider when making a recoverability determination
with respect to the reimbursement of such expenses include, but are not limited
to, (i) the financial condition of the Swap Counterparty and (ii) the likelihood
that the Swap Counterparty will make such reimbursements in the event the Paying
Agent pursues appropriate legal action or other commercially reasonable
enforcement and collection measures.
The Paying Agent shall not be required to expend any amounts in
connection with enforcing the rights of the Trust under the related Swap
Contract or entering into a replacement interest rate swap contract to the
extent amounts are not available (or, in the Paying Agent's sole discretion,
reasonably anticipated not to be available) in the Class A-2FL Grantor Trust,
the Class A-MFL Grantor Trust or the Class A-JFL Grantor Trust, as applicable,
after the application of funds held in the Class A-2FL Floating Rate Account,
the Class A-MFL Floating Rate Account or the Class A-JFL Floating Rate Account,
respectively, in accordance with Section 5.3(c).
ARTICLE VII
CONCERNING THE TRUSTEE, THE CUSTODIAN, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE CUSTODIAN AND THE PAYING
AGENT.
(a) The Trustee, the Custodian and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied
160
covenants or obligations shall be read into this Agreement against the Trustee,
the Custodian or the Paying Agent. Any permissive right of the Trustee, the
Custodian or the Paying Agent provided for in this Agreement shall not be
construed as a duty of the Trustee, the Custodian or the Paying Agent. The
Trustee, the Custodian and the Paying Agent each shall exercise such of the
rights and powers vested in it by this Agreement and following the occurrence
and during the continuation of any Event of Default hereunder, the Trustee, the
Custodian and the Paying Agent each shall use the same degree of care and skill
in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee or the Paying Agent, as the
case may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicer or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Paying Agent shall inform the
Certificateholders.
(c) None of the Trustee, the Custodian or the Paying Agent, nor
any of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Custodian, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) none of the Trustee, the Custodian or the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee, the Custodian or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) none of the Trustee, the Custodian or the Paying Agent,
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
161
(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Custodian or the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Custodian or the Paying
Agent, as in accordance with this Agreement. In such event, all legal expense
and costs of such action shall be expenses and costs of the Trust, and the
Trustee, the Custodian and the Paying Agent shall be entitled to be reimbursed
therefor from the Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) none of the Trustee, the Custodian or the Paying Agent
shall be charged with knowledge of a Rating Agency Trigger Event or of any
failure by the Master Servicer, the Special Servicer or the Swap Counterparty or
by each other to comply with its obligations under this Agreement or the Swap
Contract or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Custodian or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee, the Custodian or the Paying Agent,
as the case may be, obtains actual knowledge of such failure.
(d) For so long as the Certificates are listed on the Luxembourg
Stock Exchange, the Depositor shall cause the continuing obligations under the
listing rules for the Luxembourg Stock Exchange to be complied with in respect
of the Certificates. The Trustee and the Paying Agent shall not be liable for a
failure in compliance with such continuing obligations under the listing rules
of the Luxembourg Stock Exchange if such failure is caused by the negligence or
willful misconduct of the Luxembourg Paying Agent.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE CUSTODIAN
AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Custodian and the Paying Agent each may
request, and may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Custodian and the Paying Agent each may
consult with counsel and the advice of such counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) none of the Trustee, the Custodian or the Paying Agent,
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
162
(iv) the Trustee, the Custodian and the Paying Agent shall
not be under any obligation to exercise any remedies after default as specified
in this Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided the
same appears regular on its face), unless requested in writing to do so by
Holders of at least 25% of the Aggregate Certificate Balance of the Certificates
then outstanding provided that, if the payment within a reasonable time to the
Trustee, the Custodian or the Paying Agent, as applicable, of the costs,
expenses or liabilities likely to be incurred by it in connection with the
foregoing is, in the opinion of such Person not reasonably assured to such
Person by the security afforded to it by the terms of this Agreement, such
Person may require reasonable indemnity against such expense or liability or
payment of such estimated expenses as a condition to proceeding. The reasonable
expenses of the Trustee, the Custodian or the Paying Agent, as applicable, shall
be paid by the Certificateholders requesting such examination;
(v) the Trustee, the Custodian and the Paying Agent each
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and obligations of
the Trustee, the Custodian and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Custodian and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of
the Master Servicer, the Special Servicer, the Depositor or the actions or
omissions of each other;
(vi) none of the Trustee, the Custodian or the Paying Agent
shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) none of the Trustee, the Custodian or the Paying Agent
shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) none of the Trustee, the Custodian or the Paying Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement;
(ix) unless otherwise specifically required by law, neither
the Trustee, the Custodian nor the Paying Agent shall be required to post any
surety or bond of any kind in connection with the execution or performance of
its duties hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, neither the Trustee, the Custodian
nor the Paying Agent shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
163
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only to the extent such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only to the extent such taxes arise out of a breach by the Paying
Agent of its obligations hereunder, which breach constitutes negligence or
willful misconduct of the Paying Agent.
SECTION 7.3 THE TRUSTEE AND THE PAYING AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee and the Paying Agent
each makes no representations as to the validity or sufficiency of this
Agreement, the information contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or Prospectus
for the REMIC III Certificates or Residual Certificates (other than the
Certificate of Authentication on the Certificates if the Paying Agent is the
Authenticating Agent) or of any Mortgage Loan, Assignment of Mortgage or related
document save that each of the Trustee and the Paying Agent represents that,
assuming due execution and delivery by the other parties hereto, this Agreement
has been duly authorized, executed and delivered by it and constitutes its valid
and binding obligation, enforceable against it in accordance with its terms
except that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. None
of the Trustee or the Paying Agent shall be accountable for the use or
application by the Depositor or the Master Servicer or the Special Servicer or
by each other of any of the Certificates or any of the proceeds of such
Certificates, or for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement, the
Prospectus or the Certificates (except, with respect to the Trustee, those
sections for which the Trustee, has indemnified the Depositor, the Underwriters
164
and the Placement Agents pursuant to an Indemnification Agreement dated as of
the date of the Final Prospectus Supplement between the Trustee and the
Depositor, the Underwriters and the Placement Agents and with respect to the
Paying Agent, those sections for which the Paying Agent, has indemnified the
Depositor, the Underwriters and the Placement Agents pursuant to an
Indemnification Agreement dated as of the date of the Final Prospectus
Supplement between the Paying Agent and the Depositor, the Underwriters and the
Placement Agents), the Mortgage Loans or the assignment thereof against the
Trustee or the Paying Agent in such Person's individual capacity, and any such
claim shall be asserted solely against the Trust or any indemnitor who shall
furnish indemnity as provided herein. Neither the Trustee nor the Paying Agent
shall be liable for any action or failure of any action by the Depositor or the
Master Servicer or the Special Servicer or by each other hereunder. Neither the
Trustee nor the Paying Agent shall at any time have any responsibility or
liability for or with respect to the legality, validity or enforceability of the
Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages
or the maintenance of any such perfection and priority, or for or with respect
to the efficacy of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon; the validity
of the assignment of the Mortgage Loans to the Trust or of any intervening
assignment; the completeness of the Mortgage Loans; the performance or
enforcement of the Mortgage Loans (other than if the Trustee shall assume the
duties of the Master Servicer); the compliance by the Depositor, the Seller, the
Mortgagor or the Master Servicer or the Special Servicer or by each other with
any warranty or representation made under this Agreement or in any related
document or the accuracy of any such warranty or representation made under this
Agreement or in any related document prior to the receipt by a Responsible
Officer of the Trustee of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Master Servicer or the Special Servicer or any loss resulting therefrom;
the failure of the Master Servicer or any Sub-Servicer or the Special Servicer
to act or perform any duties required of it on behalf of the Trustee hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer or
the Special Servicer.
SECTION 7.4 THE TRUSTEE AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE AND THE
PAYING AGENT.
(a) The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association, organized and doing business under the laws of the United States of
America or any state, authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A-1" by S&P and whose long-term senior unsecured debt is at all times
rated not less than "AA-" by Fitch (or "A+" by Fitch if the Trustee's short-term
unsecured debt is rated at least "F-1" by Fitch) and "A+" by S&P, provided, that
if a Fiscal Agent meeting the requirements of Section 7.19(a) is then currently
acting in such capacity, and has a long term unsecured debt rating of at least
"AA-" by Fitch (or
165
"A+" by Fitch if the Fiscal Agent's short-term unsecured debt is rated at least
"F-1" by Fitch), and "AA-" by S&P (or "A+" by S&P if the Fiscal Agent's
short-term unsecured debt is rated at least "A-1" by S&P), then the Trustee must
be rated not less than "A-" by Fitch and "A-" by S&P, or otherwise acceptable to
the Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by Fitch and "A-" by S&P, or a rating otherwise acceptable to
the Rating Agencies, as evidenced by Rating Agency Confirmation.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE OR THE PAYING
AGENT.
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer, the Swap Counterparty
and the Rating Agencies; provided that such resignation shall not be effective
until its successor shall have accepted the appointment. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor trustee
or paying agent, as the case may be, except in the case of the initial Trustee
in which case it shall be so replaced but may be replaced under this paragraph,
by written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee and one copy to each of the
Master Servicer, the Special Servicer, the Paying Agent and the Rating Agencies.
If no successor trustee or paying agent shall have been so appointed, as the
case may be, and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee or the Paying Agent, as the
case may be, may petition any court of competent jurisdiction for the
appointment of a successor trustee or paying agent, as the case may be. It shall
be a condition to the appointment of a successor trustee that such entity
satisfies the eligibility requirements set forth in Section 7.5 and, for so long
as the Trust, and with respect to any Serviced Companion Mortgage Loan, the
trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, shall have been consented to by the Depositor
or the depositor in such Other Securitization, as the case may be (which consent
shall not be unreasonably withheld).
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
166
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII, then the Depositor may remove such
Trustee and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer, the Special
Servicer and the Rating Agencies. In the case of removal under clauses (i),
(ii), (iii), (iv) and (v) above, the Trustee shall bear all such costs of
transfer. Such succession shall take effect after a successor trustee has been
appointed.
(c) Following the Closing Date, for so long as the Trust, and with
respect to any Serviced Companion Mortgage Loan, the trust in the related Other
Securitization, are subject to the reporting requirements of the Exchange Act,
the Paying Agent may not appoint any sub-servicer that is or could become a
Reporting Servicer without the prior written consent of the Depositor or the
depositor in such Other Securitization, as the case may be, which consent shall
not be unreasonably withheld.
(d) If at any time (i) the Paying Agent shall cease to be eligible
in accordance with the provisions of Section 7.5(b) and shall fail to resign
after written request therefor by the Depositor, (ii) the Paying Agent shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of the Paying Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust or
any REMIC Pool by any state in which the Paying Agent is located solely because
of the location of the Paying Agent in such state; provided, however, that, if
the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), (iv) the continuation of the Paying Agent
as such would result in a downgrade, qualification or withdrawal, as applicable,
of the rating by any Rating Agency of any Class of Certificates with a rating as
evidenced in writing by the Rating Agencies, (v) if the Paying Agent shall fail
(other than by reason of a Master Servicer's or Special Servicer's failure to
timely perform its obligations hereunder), to timely publish any report to be
delivered, published or otherwise made available by the Paying Agent pursuant to
Sections 5.4 and 5.5 and such failure shall continue unremedied for a period of
five days, (vi) if the Paying Agent should fail to make distributions required
pursuant to Section 5.3, Section 10.1 or Article VI or (vii) if the Paying Agent
fails to perform (or acts with negligence, bad faith or willful misconduct in
performing) any of its obligations set forth in Article XIII (other than the
failure to file any Exchange Act report due to the non-receipt of the Exchange
Act reportable information from the Master Servicer or Special Servicer), then
the Depositor or the Trustee shall send a written notice of termination to the
Paying Agent (which notice shall specify the reason for such termination) and
remove such Paying Agent and the Depositor shall appoint a successor Paying
Agent by written instrument, one copy of which instrument shall be delivered to
the Paying Agent so removed, one copy to the successor Paying Agent, and one
copy to each of the Trustee, the Master Servicer, the Special Servicer and the
Rating Agencies. In all such cases, the Paying Agent shall bear all costs of
transfer to a successor Paying Agent, such succession only to take effect after
a successor Paying Agent has been appointed.
167
(e) The Holders of more than 50% of the Aggregate Certificate
Balance of the Principal Balance Certificates then outstanding may without cause
at any time upon written notice to the Trustee or the Paying Agent, as the case
may be, and to the Depositor remove the Trustee or the Paying Agent, as the case
may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee or the Paying Agent, as
the case may be, so removed; the Depositor shall thereupon use its best efforts
to appoint a successor Trustee or Paying Agent, as the case may be, in
accordance with this Section.
(f) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE OR PAYING AGENT.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein. The predecessor Trustee
or Paying Agent shall deliver (at such predecessor's own expense) to the
successor Trustee or Paying Agent all Mortgage Files and documents and
statements related to the Mortgage Files held by it hereunder, (other than any
Mortgage Files at the time held on behalf of the Trust by a Custodian), and the
predecessor Trustee shall duly assign, transfer, deliver and pay over (at such
predecessor's own expense) to the successor Trustee, the entire Trust, together
with all instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer. The predecessor Trustee or Paying
Agent, as the case may be, shall also deliver all records or copies thereof
maintained by the predecessor Trustee or Paying Agent in the administration
hereof as may be reasonably requested by the successor Trustee or Paying Agent,
as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment
as provided in this Section unless at the time of such appointment such
successor Trustee or Paying Agent, as the case may be, shall be eligible under
the provisions of Section 7.5.
168
(c) Upon acceptance of appointment by a successor Trustee or
Paying Agent as provided in this Section, the successor Trustee or Paying Agent
shall mail notice of the succession of such Trustee or Paying Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies. The expenses of such mailing shall be borne
by the successor Trustee or Paying Agent. If the successor Trustee or Paying
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee or Paying Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, CUSTODIAN OR
PAYING AGENT. Any Person into which the Trustee, the Custodian or Paying Agent
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
the Custodian or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, the Custodian or Paying Agent, shall be the successor
of such Trustee, the Custodian or Paying Agent, as the case may be, hereunder,
as applicable, provided that (i) in the case of the Trustee or Paying Agent,
such Person shall be eligible under the provisions of Section 7.5, and (ii) for
so long as the Trust, and with respect to any Serviced Companion Mortgage Loan,
the trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, shall have been consented to by the Depositor
or the depositor in such Other Securitization, as the case may be, (which
consent shall not be unreasonably withheld), 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.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS
OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
169
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
170
(e) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the Depositor's consent, which consent shall not be
unreasonably withheld, the Trustee, at its sole cost and expense, may appoint at
any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Any successor Authenticating Agent must be acceptable to the Depositor and must
be a corporation or national bank organized and doing business under the laws of
the United States of America or of any state and having a principal office and
place of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed
171
as Paying Agent hereunder. Upon receiving a notice of resignation or upon such a
termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of Section 7.10(a), the Trustee may
appoint a successor Authenticating Agent, shall give written notice of such
appointment to the Depositor and shall mail notice of such appointment to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE CUSTODIAN AND THE +
PAYING AGENT.
(a) The Trustee, the Custodian, the Certificate Registrar and the
Paying Agent (each such institution in its respective individual capacity and
including in each case any other capacity it holds under this Agreement) and
each of their respective directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action incurred without negligence or willful
misconduct on their respective part, arising out of, or in connection with this
Agreement, the Certificates and the acceptance or administration of the trusts
or duties created hereunder (including, without limitation, any unanticipated
loss, liability or expense incurred in connection with any action or inaction of
the Master Servicer, the Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, is unable to
recover within a reasonable period of time such amount from such third party
pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Custodian, the
Certificate Registrar and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Custodian,
the Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, shall have given
the Depositor, the Master Servicer, the Seller, each other and the Holders of
the Certificates written notice thereof promptly after a Responsible Officer of
the Trustee, the Custodian, the Certificate Registrar or the Paying Agent, as
the case may be, shall have actual knowledge thereof; provided, however, that
failure to give such notice to the Depositor, Master Servicer, the Seller, each
other and the Holders of Certificates shall not affect the Trustee's, the
Custodian's, Certificate Registrar's or Paying Agent's, as the case may be,
rights to indemnification herein unless the Depositor's defense of such claim on
behalf of the Trust is materially prejudiced thereby;
172
(ii) while maintaining control over its own defense, the
Trustee, the Custodian, the Certificate Registrar or the Paying Agent, as the
case may be, shall cooperate and consult fully with the Depositor in preparing
such defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Custodian, the Certificate Registrar or the Paying Agent, as the
case may be, entered into without the Depositor's prior consent, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Custodian, the Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee,
the Custodian, the Certificate Registrar or the Paying Agent, as the case may
be, their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the Securities Act, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, furnished to the
Depositor by or on behalf of such person specifically for inclusion therein. It
is hereby expressly agreed that the only written information provided by the
Trustee, the Custodian, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement are those sections for which the Trustee, the Custodian,
the Certificate Registrar or the Paying Agent, as the case may be, have
indemnified the Depositor, the Underwriters and the Placement Agents pursuant to
an Indemnification Agreement dated as of the date of the Final Prospectus
Supplement between the Trustee, the Custodian, the Certificate Registrar or the
Paying Agent, as the case may be, and the Depositor, the Underwriters and the
Placement Agents. The Trustee, the Custodian, the Certificate Registrar or the
Paying Agent, as the case may be, shall immediately notify the Depositor and the
Seller if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to indemnification
173
hereunder, whereupon the Depositor shall assume the defense of any such claim
(with counsel reasonably satisfactory to such person) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Depositor shall not affect
any rights the Trustee, the Custodian, the Certificate Registrar or the Paying
Agent, as the case may be, their respective directors, officers, employees,
agents or Controlling Person may have to indemnification under this Section
7.11(c), unless the Depositor's defense of such claim is materially prejudiced
thereby. The indemnification provided herein shall survive the termination of
this Agreement and the resignation or removal of the Trustee, the Custodian or
the Paying Agent. The Depositor shall not be indemnified by the Trust for any
expenses incurred by the Depositor arising from any violation or alleged
violation of the Securities Act or Exchange Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE AND THE PAYING AGENT.
The Trustee shall be entitled to receive the Trustee Fee (other than the portion
thereof constituting the Paying Agent Fee) and the Paying Agent shall be
entitled to receive the Paying Agent Fee, pursuant to Section 5.3(b)(ii) (which
shall not be limited by any provision of law with respect to the compensation of
a trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee and the Paying Agent.
The Trustee and the Paying Agent shall also be entitled to recover from the
Trust all reasonable unanticipated expenses and disbursements incurred or made
by the Trustee and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated
pursuant to this Agreement, the Trustee shall be the successor in all respects
to the Master Servicer in its capacity under this Agreement and the transactions
set forth or provided for therein and shall have all the rights and powers and
be subject to all the responsibilities, duties and liabilities relating thereto
174
and arising thereafter placed on the Master Servicer by the terms and provisions
of this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement), except any ongoing obligations to the
applicable Primary Servicer arising after the termination of the Master Servicer
from their servicing rights and obligations under the applicable Primary
Servicing Agreement. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability granted to the Master Servicer in
this Agreement. As compensation therefor, the Trustee shall be entitled to
receive all the compensation payable to the Master Servicer set forth in this
Agreement, including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee
is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act as the Master
Servicer as hereinabove provided. Any entity designated by the Trustee as
successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for the Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree subject to Section 8.10,
provided that no such compensation shall be in excess of that permitted to be
paid to the Master Servicer under this Agreement. The Trustee and such successor
shall take such actions, consistent with this Agreement as shall be necessary to
effectuate any such succession. The Master Servicer shall cooperate with the
Trustee and any successor servicer in effecting the termination of the Master
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of the assignment of the servicing function and
providing the Trustee and successor servicer all documents (including any
subservicing agreements) and records in its possession in electronic or other
form reasonably requested by the successor servicer to enable the successor
servicer to assume the Master Servicer's functions hereunder and the transfer to
the Trustee or such successor servicer of all amounts which shall at the time be
or should have been deposited by the Master Servicer in the Certificate Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
175
expenses have not been reimbursed by the Master Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the Trustee shall
be the successor in all respects to the Special Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by the Special Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
the Special Servicer contained in this Agreement or (ii) any obligation incurred
by the Special Servicer prior to its termination or resignation. In the
Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to the Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to the Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation (other than any Work-Out Fee payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee
shall be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor,
subject to Section 9.21(d), out of payments on Mortgage Loans as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted to the Special Servicer under this Agreement. The Trustee and
such successor shall take such actions, consistent with this Agreement as shall
be necessary to effectuate any such succession. The Special Servicer shall
cooperate with the Trustee and any successor Special Servicer in effecting the
termination of the Special Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of Specially
Serviced Mortgage Loans of the assignment of the special servicing function and
providing the Trustee and successor Special Servicer all documents and records
in its possession in electronic or other form reasonably requested by the
successor Special Servicer to enable the successor Special Servicer to assume
the Special Servicer's functions hereunder and the transfer to the Trustee or
such successor Special Servicer of all amounts which shall at the time be or
should have been deposited by the Special Servicer in the Certificate Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received by the Special Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor Special Servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in
176
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Special Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Special Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Special Servicer by the Trust within 30 days of
submission of an invoice with respect thereto but only to the extent such
expenses have not been reimbursed by the Special Servicer as provided herein;
and such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of, or an
Event of Default by, the Master Servicer, the Paying Agent or the Special
Servicer, or appointment of a successor to the Master Servicer, the Paying Agent
or the Special Servicer, the Trustee shall promptly mail notice thereof by first
class mail to the Rating Agencies, the Operating Adviser, the Seller and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE
CUSTODIAN AND THE PAYING AGENT.
(a) The Trustee and Custodian hereby represent and warrant,
each as to itself, as of the date hereof that:
(i) It is a national banking association, duly organized,
validly existing and in good standing under the laws governing its creation and
existence and has full power and authority to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under this Agreement;
(ii) the execution and delivery by it of this Agreement have
been duly authorized by all necessary action on the part of it; neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated in this Agreement, nor compliance with the provisions
of this Agreement, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on it or its properties that would
materially and adversely affect the it's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the it, or (iii) the
terms of any material agreement or instrument to which it is a party or by which
it is bound; it is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or shall be obtained,
given, effected or taken in order for it to perform its obligations under this
Agreement;
(iv) this Agreement has been duly executed and delivered by
it and, assuming due authorization, execution and delivery by the other parties
hereto, constitutes a
177
valid and binding obligation of it, enforceable against it in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to it's knowledge,
threatened, against it that, either in one instance or in the aggregate, would
draw into question the validity of this Agreement, or which would be likely to
impair materially the ability of it to perform under the terms of this
Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) it is a national banking association, duly organized,
validly existing and in good standing under the laws governing its creation and
existence and has full power and authority to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under this Agreement;
(ii) the execution and delivery by it of this Agreement have
been duly authorized by all necessary action on the part of the Paying Agent;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on it or its properties that
would materially and adversely affect its ability to perform its obligations
under this Agreement, (ii) its organizational documents, or (iii) the terms of
any material agreement or instrument to which it is a party or by which it is
bound; it is not in default with respect to any order or decree of any court or
any order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect its
performance under this Agreement;
(iii) the execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for it to perform its obligations under this
Agreement;
(iv) this Agreement has been duly executed and delivered by
the Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to
the best of its knowledge, threatened, against it that, either in one instance
or in the aggregate, would
178
draw into question the validity of this Agreement, or which would be likely to
impair materially its ability to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE CUSTODIAN AND THE PAYING AGENT. Each of
the Trustee, the Custodian and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees or
paying agents in similar transactions (unless the Trustee, the Custodian or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee, the Custodian or the Paying Agent, as the case may
be, shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term debt rating of the Trustee, the Custodian
or the Paying Agent, as the case may be, is not less than "A" as rated by Fitch,
if rated by Fitch, and "A" as rated by S&P, if rated by S&P, respectively, the
Trustee, the Custodian or the Paying Agent, as the case may be, may self-insure
for the Fidelity Bond and the Errors and Omissions Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION
TO CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in Luxembourg (the
"Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
179
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg
Paying Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual Period, the amount of principal and interest distributable on
the related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
(ii) to the Luxembourg Paying Agent on each Distribution
Date, the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following
receipt thereof, all notices and reports regarding any termination of the
Trustee or the Paying Agent or appointment of a successor to the Trustee or the
Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following
receipt thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to the
Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to the
Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates shall be listed on the Luxembourg Stock
Exchange or any other stock exchange.
SECTION 7.19 APPOINTMENT OF A FISCAL AGENT.
(a) In order to satisfy the eligibility requirements of Section
7.5 (insofar as such requirements relate to ratings), the Trustee may appoint a
Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from Fitch and S&P (or "A+" from Fitch and
S&P, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch and at least "A-1" by S&P) (or, in the case of either Rating Agency,
such other rating as shall not result in a downgrade, qualification or
withdrawal of the rating by the Rating Agencies of any Class of Certificates
with a rating as evidenced in writing by the Rating Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent
180
makes an Advance pursuant to this Section 7.19(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicer or the
Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section
7.19 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.19(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto,
the Certificateholders and the holders of any Servicer Companion Mortgage Loan
in writing of the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Master Servicer shall service and administer the Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan in accordance with the Servicing Standard
and the terms of this Agreement (subject to the servicing of any Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan
181
Special Servicer in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement). Certain of the provisions of this Article VIII
make explicit reference to their applicability to Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan; notwithstanding such explicit references,
references to "Mortgage Loans" contained in this Article VIII, unless otherwise
specified, shall be construed to refer also to such B Note and Serviced
Companion Mortgage Loan (but any other terms that are defined in Article I and
used in this Article VIII shall be construed according to such definitions
without regard to this sentence).
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole (or, in the case of any A/B Mortgage Loan or Loan Pair, the
Certificateholders and the holder of the related B Note and Serviced Companion
Mortgage Loan, all taken as a collective whole taking into account the
subordinate nature of the B Note); provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the Master
Servicer of the collectability of payments on the Mortgage Loans or shall be
construed as impairing or adversely affecting any rights or benefits
specifically provided by this Agreement to the Master Servicer, including with
respect to Master Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in
clauses (x) or (z) of this subclause (b), and the Special Servicer, in the case
of an event specified in clause (y) of this subclause (b), shall each send a
written notice to the other and to the Trustee and the Paying Agent, the
Operating Adviser, the Seller and, in the case of an A/B Mortgage Loan, the
holder of the related B Note and, in the case of a Loan Pair, the holder of the
related Serviced Companion Mortgage Loan, within two Business Days after
becoming aware (x) that a Servicing Transfer Event has occurred with respect to
a Mortgage Loan, (y) that a Mortgage Loan has become a Rehabilitated Mortgage
Loan, which notice shall identify the applicable Mortgage Loan and, in the case
of an event specified in clause (x) of this subclause (b) above, the Servicing
Transfer Event that occurred or (z) if a payment default shall have occurred on
a Mortgage Loan at its Maturity Date and the Mortgagor has notified the Master
Servicer of its intent to refinance such Mortgage Loan and is diligently
pursuing such refinancing.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master Servicer or
the applicable Primary Servicer shall notify the Special Servicer to such effect
and the Master Servicer shall take reasonable actions as are in accordance with
the Servicing Standard and the terms and conditions of such Environmental
Insurance Policy to make a claim thereunder and achieve the payment of all
amounts to which the Trust is entitled thereunder. Any legal fees or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim shall be paid by, and reimbursable to, the Master
Servicer or the Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan, the Master Servicer shall give prompt written notice of such
extension to the insurer under the Environmental Insurance Policy and shall
execute such documents as are reasonably required by such insurer to procure an
extension of such policy (if available).
182
(e) The parties hereto acknowledge that each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan is subject to the terms and
conditions of the related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loans are subject to the terms and conditions of the related
Intercreditor Agreement, and each such party agrees that the provisions of each
Loan Pair Intercreditor Agreement and Intercreditor Agreement that are required
by their terms to be set forth in this Agreement are hereby incorporated herein.
With respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, the Trustee, the Master Servicer and the Special Servicer
recognize the respective rights and obligations of the Trust and the holders of
each Serviced Companion Mortgage Loan under the related Loan Pair Intercreditor
Agreement, including, with respect to the allocation of collections on or in
respect of any Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage
Loan in accordance with the related Loan Pair Intercreditor Agreement. The
Master Servicer shall comply with the applicable provisions of each Loan Pair
Intercreditor Agreement, and if any Serviced Pari Passu Mortgage Loan and
Serviced Companion Mortgage Loan are then Specially Serviced Mortgage Loans, the
Special Servicer shall comply with the applicable provisions of the related Loan
Pair Intercreditor Agreement. The parties hereto agree that any conflict between
the terms of this Agreement and the terms of any Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable, shall be resolved in favor
of the Loan Pair Intercreditor Agreement or Intercreditor Agreement.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to each Non-Serviced Mortgage Loan Master Servicer, stating that,
as of the Closing Date, the Trustee is the holder of the applicable Non-Serviced
Mortgage Loan, and directing such Non-Serviced Mortgage Loan Master Servicer to
remit to the Master Servicer all amounts payable to, and directing such
Non-Serviced Mortgage Loan Master Servicer 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, such holder of the applicable
Non-Serviced Mortgage Loan under the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement.
(g) Each Non-Serviced Mortgage Loan shall be serviced and
administered by the applicable Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
183
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense,
shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not in any event less than "A" as rated by Fitch and "BBB" as rated by S&P,
respectively, the Master Servicer may self-insure for the Servicer Fidelity Bond
and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27, 9.39 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. In addition, subject to Section 8.18 hereof, the Master
Servicer, consistent with the Servicing Standard, may waive any default interest
and Late Fees with respect to the Mortgage Loans (or a Serviced Companion
Mortgage Loan to the extent such default interest and Late Fees are not required
to be used to offset interest on advances of the Other Master Servicer for any
P&I Advance made by such Other Master Servicer under the Other Pooling and
Servicing Agreement, if such Serviced Companion Mortgage Loan is deposited into
an Other Securitization) that are not Specially Serviced Mortgage Loans;
provided that, to the extent the Master Servicer waives any default interest and
Late Fees, any outstanding Advance Interest and Additional Trust Expenses with
respect to the related Mortgage Loan (or Serviced Companion Mortgage Loan, as
applicable) that would otherwise have been paid out of such default interest and
Late Fees shall be paid out of the additional servicing compensation payable to
such Master Servicer with respect to that Mortgage Loan (or Serviced Companion
Mortgage Loan, as applicable); and provided, further, that if no additional
servicing compensation is available to offset the outstanding Advance Interest
and Additional Trust Expenses with respect to the Mortgage Loan (or Serviced
Companion Mortgage Loan) that would otherwise be offset by the default interest
and Late Fees, then the Master Servicer shall not waive such default interest
and Late Fees unless it is the first such waiver with respect to the subject
Mortgage Loan (or Serviced Companion Mortgage Loan, as applicable).
Notwithstanding the above, the Master Servicer shall have no power to (i) waive
any Prepayment Premiums or (ii) consent to any modification of a Money Term of a
Mortgage Loan. In addition, subject to the Servicing Standard, the Master
Servicer shall not accept any prepayment of principal with respect to any
Mortgage Loan on any date other than the related Due Date unless (i) such
payment is accompanied by a payment of the interest due with respect to such
Mortgage Loan up to the next succeeding Due Date, (ii) such prepayment does not
result in the Trust incurring a Prepayment Interest Shortfall or (iii) such
prepayment is required to be permitted under the related Mortgage Loan documents
or applicable law on a date other than the related Due Date; provided that the
payment of the related Prepayment Interest Shortfall shall be deemed to cure a
breach of the covenant in this sentence. Nothing contained in this Agreement
shall limit the ability of the Master Servicer to lend money to (to the extent
not secured, in whole
184
or in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Mortgagor as
though the Master Servicer was not a party to this Agreement or to the
transactions contemplated hereby; provided, however, that this sentence shall
not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. The Master
Servicer shall give notice within one (1) Business Day to the Special Servicer
of any collections it receives from any Specially Serviced Mortgage Loans,
subject to changes agreed upon from time to time by the Special Servicer and the
Master Servicer. The Special Servicer shall instruct within one Business Day
after receiving such notice the Master Servicer on how to apply such funds. The
Master Servicer within one Business Day after receiving such instructions shall
apply such funds in accordance with the Special Servicer's instructions. Each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan shall continue as
such until such Mortgage Loan becomes a Rehabilitated Mortgage Loan. The Master
Servicer shall not be required to initiate extraordinary collection procedures
or legal proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Power of Attorney attached hereto as Exhibit S-1. The Master
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of additional unexecuted
powers of attorney from the Master Servicer or the Special Servicer, the Trustee
shall execute and return to the Master Servicer, the Special Servicer or any
Primary Servicer any additional powers of attorney and other documents necessary
or appropriate to enable the Master Servicer and the Special Servicer to service
and administer the Mortgage Loans including, without limitation, documents
relating to the management, operation, maintenance, repair, leasing or marketing
of the Mortgaged Properties. The Master Servicer shall indemnify the Trustee for
any costs, liabilities and expenses (including attorneys' fees) incurred by the
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Master Servicer. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) knowingly
take any action that causes the Trustee to be registered to do business in any
state, provided, however, that the preceding clause (i) shall not apply to the
initiation of actions relating to a Mortgage Loan that the Master Servicer or
the Special Servicer, as the case may be, is servicing pursuant to its
respective duties herein (in which case the Master Servicer or the Special
Servicer, as the case may be, shall give three (3) Business Days prior notice to
the Trustee of the
185
initiation of such action). The limitations of the preceding clause shall not be
construed to limit any duty or obligation imposed on the Trustee under any other
provision of this Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the applicable Primary Servicer on its
behalf) shall segregate and hold all funds collected and received pursuant to
any Mortgage Loan (other than any Non-Serviced Mortgage Loan) constituting
Escrow Amounts separate and apart from any of its own funds and general assets
and shall establish and maintain one or more segregated custodial accounts
(each, an "Escrow Account") into which all Escrow Amounts shall be deposited
within one (1) Business Day after receipt. Each Escrow Account shall be an
Eligible Account, except with respect to Mortgage Loans identified on Schedule
VI for which Escrow Accounts shall be transferred to Eligible Accounts at the
earliest date permitted under the related Mortgage Loan documents. The Master
Servicer shall also deposit into each Escrow Account any amounts representing
losses on Eligible Investments pursuant to the immediately succeeding paragraph
and any Insurance Proceeds or Liquidation Proceeds which are required to be
applied to the restoration or repair of any Mortgaged Property pursuant to the
related Mortgage Loan. Each Escrow Account shall be maintained in accordance
with the requirements of the related Mortgage Loan and in accordance with the
Servicing Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account (or any
sub-account thereof) to reimburse the Master Servicer for any Advance (or the
Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that
were not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained
186
to invest the funds held therein in one or more Eligible Investments; provided,
however, that such funds shall be either (x) immediately available or (y)
available in accordance with a schedule which will permit the Master Servicer to
meet the payment obligations for which the Escrow Account was established; (ii)
the Master Servicer shall be entitled to all income and gain realized from any
such investment of funds as additional servicing compensation; and (iii) the
Master Servicer shall deposit from its own funds in the applicable Escrow
Account the amount of any loss incurred in respect of any such investment of
funds on or before the next Master Servicer Remittance Date. The Master Servicer
shall not direct the investment of funds held in any Escrow Account and retain
the income and gain realized therefrom if the terms of the related Mortgage Loan
or applicable law permit the Mortgagor to be entitled to the income and gain
realized from the investment of funds deposited therein, and the Master Servicer
shall not be required to invest amounts on deposit in Escrow Accounts in
Eligible Investments or Eligible Accounts to the extent that the Master Servicer
is required by either law or under the terms of any related Mortgage Loan to
deposit or invest (or the Mortgagor is entitled to direct the deposit or
investment of) such amounts in another type of investments or accounts. In the
event the Master Servicer is not entitled to direct the investment of such
funds, (1) the Master Servicer shall direct the depository institution or trust
company in which such Escrow Accounts are maintained to invest the funds held
therein in accordance with the Mortgagor's written investment instructions, if
the terms of the related Mortgage Loan or applicable law require the Master
Servicer to invest such funds in accordance with the Mortgagor's directions; and
(2) in the absence of appropriate written instructions from the Mortgagor, the
Master Servicer shall have no obligation to, but may be entitled to, direct the
investment of such funds; provided, however, that in either event (i) such funds
shall be either (y) immediately available or (z) available in accordance with a
schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and the Paying Agent and to each other under
this Agreement is intended by the parties to be that of an independent
contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms
of the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
Master Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage Loan
documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer or the applicable Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The Master Servicer shall not permit defeasance (or partial
defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on or
before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and the Master Servicer has received an
opinion of counsel to
187
such effect and all items in the following sentence have been satisfied.
Subsequent to the second anniversary of the Closing Date, the Master Servicer,
in connection with the defeasance of a Mortgage Loan shall require (to the
extent it is not inconsistent with the Servicing Standard) that: (i) the
defeasance collateral consists of Qualifying Government Securities as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended, that are
acceptable as defeasance collateral under the current guidelines of the Rating
Agencies, (ii) the Master Servicer has determined that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral (subject to customary qualifications) or (B) the
Master Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans, (iv) the Master Servicer has
requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) a Rating Agency Confirmation is received if the
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$35,000,000 and 5% of the Aggregate Certificate Balance, unless such Rating
Agency has waived in writing such Rating Agency Confirmation requirement (or
such higher threshold, if any, as shall be published by the Rating Agencies) or
(B) if the Mortgage Loan is less than or equal to both of the amounts set forth
in clause (A) and the successor Mortgagor with respect to the subject Mortgage
Loan and its affiliates collectively have assumed Mortgage Loans comprising an
aggregate principal amount at least equal to the lesser of $35,000,000 and 5% of
the Aggregate Certificate Balance, either a Notice and Certification in the form
attached hereto as Exhibit Z (or such less restrictive forms, if any, as shall
be adopted by the Rating Agencies) or a Rating Agency Confirmation is received
from S&P and (vi) a Rating Agency Confirmation is received if the Mortgage Loan
is one of the ten largest Mortgage Loans, by Principal Balance. Any customary
and reasonable out-of-pocket expense incurred by the Master Servicer pursuant to
this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents.
The parties hereto acknowledge that if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, including, but not limited to, rating agency fees, then the sole
obligation of the Seller shall be to pay an amount equal to such insufficiency
or expense to the extent the related Mortgagor is not required to pay such
amount. Promptly upon receipt of notice of such insufficiency or unpaid expense,
the Master Servicer shall request the Seller to make such payment by deposit to
the Certificate Account.
In the case of a Specially Serviced Mortgage Loan, the Master
Servicer shall process any defeasance of such Specially Serviced Mortgage Loan
in accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special Servicer that the Master Servicer do so,
which request shall be accompanied by a waiver of any condition of defeasance
that an "event of default" under such Specially Serviced Mortgage Loan
188
not have occurred or be continuing, and the Master Servicer shall be entitled to
any fees paid relating to such defeasance. If such "event of default" is on
account of an uncured payment default, the Special Servicer will process the
defeasance of such Specially Serviced Mortgage Loan, and the Special Servicer
shall be entitled to any fees paid relating to such defeasance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
originated or acquired by MSMCH and subject to defeasance, MSMCH has retained
the right to designate and establish the successor borrower and to purchase or
cause the purchase on behalf of the related borrower of the related defeasance
collateral ("MSMCH Defeasance Rights and Obligations"). In the event the Master
Servicer receives notice of a defeasance request with respect to a Mortgage Loan
originated or acquired by MSMCH and subject to defeasance, the Master Servicer
shall provide upon receipt of such notice, written notice of such defeasance
request to MSMCH or its assignee. Until such time as MSMCH provides written
notice to the contrary, notice of a defeasance of a Mortgage Loan with MSMCH
Defeasance Rights and Obligations shall be delivered to MSMCH pursuant to the
notice provisions of this Agreement.
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after the
Closing Date, the Seller has notified the related ground lessor of the transfer
of such Mortgage Loan to the Trust pursuant to this Agreement and informed such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer (as evidenced by delivery of a
copy thereof to the Master Servicer). The Master Servicer shall promptly notify
the ground lessor if the Seller has failed to do so by the thirtieth day after
the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of
any B Note has agreed that the Master Servicer and the Special Servicer are
authorized and obligated to service and administer the B Note pursuant to this
Agreement. The Master Servicer shall be entitled, during any period when the A
Note and B Note under any A/B Mortgage Loan do not constitute Specially Serviced
Mortgage Loans, to exercise the rights and powers granted under the related
Intercreditor Agreement to the "Note A Holder" and/or the "Servicer" referred to
therein. For the avoidance of doubt, the parties acknowledge that neither the
Master Servicer nor the Special Servicer shall be entitled or required to
exercise the rights and powers granted to any "Note B Holder" as defined under
the related Intercreditor Agreement.
(k) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owner of any Non-Serviced Mortgage Loan has agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer, and the applicable Non-Serviced Mortgage Loan Master Servicer
and the applicable Non-Serviced Mortgage Loan Special Servicer are authorized
and obligated to service and administer such Non-Serviced Mortgage Loan pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Master Servicer's obligations and responsibilities hereunder
and the Master Servicer's authority with respect to any Non-Serviced Mortgage
Loan are limited by and subject to the terms of the related Non-Serviced
Mortgage Loan Intercreditor Agreement and the rights of the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan
189
Special Servicer with respect thereto under the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement.
With respect to each Non-Serviced Mortgage Loan, the parties
to this Agreement shall have no obligation to supervise respective parties to
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement (but this
statement shall not relieve them of liabilities they may otherwise have in their
capacities as parties to such Non-Serviced Mortgage Loan Pooling and Servicing
Agreement). If there are at any time amounts due from the Trust, as holder of a
Non-Serviced Mortgage Loan, to any party under the related Non-Serviced Mortgage
Loan Intercreditor Agreement or the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement, the Master Servicer shall notify the Special Servicer
and the Operating Adviser, and the Master Servicer may pay such amounts out of
the Certificate Account, and, if and to the extent that the deposits in the
Certificate Account are insufficient, may (or, at the direction of the Operating
Adviser, shall) pay such amounts from its own funds (provided that any such
payment from its own funds shall constitute, and be reimbursable as, a Servicing
Advance). Except as otherwise expressly addressed in Section 8.18, if a party to
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement related to a
Non-Serviced Mortgage Loan requests the Trustee to consent to a modification,
waiver or amendment of, or other loan-level action related to, such Non-Serviced
Mortgage Loan (and a modification, waiver or amendment of the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and/or the related
Non-Serviced Mortgage Loan Intercreditor Agreement shall not be subject to the
operation of this sentence but shall instead be subject to the operation of the
second succeeding sentence), then the Trustee shall promptly deliver a copy of
such request to the Special Servicer and the Trustee shall not grant such
consent unless the Special Servicer directs the Trustee to grant such consent;
provided, however, that, if such Non-Serviced Mortgage Loan were serviced
hereunder and such action would not be permitted without written confirmation
from a Rating Agency that such action would, in and of itself, cause a
downgrade, qualification or withdrawal of any of the then-current ratings
assigned to the Certificates or an Opinion of Counsel, then the Special Servicer
shall not grant such direction without first having obtained such written
confirmation (at the expense of the party requesting such approval of the
Trustee, to the extent allowed under the Non-Serviced Mortgage Loan
Intercreditor Agreement, otherwise from the Certificate Account) or Opinion of
Counsel (at the expense of the party requesting such approval of the Trustee, to
the extent allowed under the Non-Serviced Mortgage Loan Intercreditor
Agreement). If a Responsible Officer of the Trustee receives notice of a default
or event of default on the part of any other party under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, then (subject to the
next paragraph) the Trustee shall notify (in writing), and act in accordance
with the instructions of, the Operating Adviser; provided that, if such
instructions are not provided within ten (10) Business Days or such lesser
response time as is afforded under the related Mortgage Loan Documents or
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, as
applicable, or if the Trustee is not permitted (pursuant to the next paragraph)
to follow such instructions, then the Trustee will take such action or inaction,
as directed in writing by the Holders of Certificates evidencing not less than a
majority of the outstanding Certificate Balance of the Certificates within a
reasonable period of time that does not exceed such response time as is afforded
under the related Mortgage Loan Documents or related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, as applicable. If the Trustee receives a
request from any party to a Non-Serviced Mortgage Loan Pooling and Servicing
Agreement for consent to or approval of a modification, waiver or amendment of
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement and/or the
related Non-Serviced
190
Mortgage Loan Intercreditor Agreement, or the adoption of any servicing
agreement that is the successor to and/or in replacement of such Non-Serviced
Mortgage Loan Pooling and Servicing Agreement in effect as of the Closing Date
or a change in servicer under such Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, then the Trustee shall not grant such consent or approval
unless it receives the consent of the Master Servicer under this Agreement, the
consent of the Operating Adviser, a written confirmation (at the expense of the
party requesting such approval of the Trustee, to the extent allowed under the
Non-Serviced Mortgaged Loan Intercreditor Agreement, otherwise from the
Certificate Account) from each Rating Agency to the effect that such consent or
approval would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then-current ratings assigned to the Certificates and
an Opinion of Counsel (at the expense of the party requesting such approval of
the Trustee to the extent allowed under the Non-Serviced Mortgaged Loan
Intercreditor Agreement) that such consent or approval would not, in and of
itself, cause an Adverse REMIC Event or an Adverse Grantor Trust Event. During
the continuation of any event of default or other default under a Non-Serviced
Mortgage Loan Pooling and Servicing Agreement, each of the Trustee, the Master
Servicer and the Special Servicer shall have the right to take all actions to
enforce its rights and remedies and to protect the interests, and, consistent
with the Servicing Standard, and, subject to Article VII, the Trustee shall
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). The reasonable costs and expenses incurred by the Trustee in
connection with such enforcement shall, at the direction of the Trustee, be paid
by, and reimbursable to, the Master Servicer as Servicing Advances (subject to
Section 4.4). The Trustee and the Master Servicer shall each promptly forward
all material notices or other communications delivered to it in connection with
each Non-Serviced Mortgage Loan Pooling and Servicing Agreement to the other
such party, the Depositor, the Special Servicer, the Paying Agent and the
Operating Adviser and, if such notice or communication is in the nature of a
notice or communication that would be required to be delivered to the Rating
Agencies if the related Non-Serviced Mortgage Loan were principally serviced
hereunder, to the Rating Agencies.
Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Operating Adviser, as contemplated by the
prior paragraph, may (and the Trustee shall ignore and act without regard to any
such advice, direction or objection that the Trustee has determined, in its
reasonable, good faith judgment, would): (A) require or cause the Trustee to
violate applicable law, or any other Section of this Agreement, (B) result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to any Grantor Trust Pool, (C) expose the Trust, the
Depositor, the Master Servicer (or a Primary Servicer or Sub-Servicer acting on
behalf of the Master Servicer), the Special Servicer, the Paying Agent, the
Trustee or any of their respective Affiliates, members, managers, officers,
directors, employees or agents, to any material claim, suit or liability or (D)
expand the scope of a Trustee's responsibilities under this Agreement.
With respect to each Non-Serviced Mortgage Loan, (i) the Master
Servicer shall, on the day of receipt thereof, if such Master Servicer is the
same Person or an Affiliate of the related Non-Serviced Mortgage Loan Master
Servicer, and otherwise within one Business Day following the receipt thereof,
deposit into the Certificate Account all amounts received by it from the
Non-Serviced Mortgage Loan Master Servicer or any other party under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and (ii) if the
Master Servicer has
191
notice, or a Servicing Officer of the Master Servicer has knowledge, of a
material failure of a Non-Serviced Mortgage Loan Master Servicer to make a
remittance that it is required to make to the Master Servicer under the terms of
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement or of a
default thereunder or under the related Non-Serviced Mortgage Loan Intercreditor
Agreement, then the Master Servicer shall provide notice of such failure to such
Non-Serviced Mortgage Loan Master Servicer, the trustee under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Trustee
hereunder and the Operating Adviser.
The Master Servicer is hereby authorized take such actions as it
shall deem reasonably necessary to facilitate the servicing of any Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer including, but not
limited to, delivering appropriate Requests for Release to the Trustee and
Custodian (if any) in order to deliver any portion of the related Mortgage File
to the applicable Non-Serviced Mortgage Loan Master Servicer or applicable
Non-Serviced Mortgage Loan Special Servicer under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement.
(l) Pursuant to each Loan Pair Intercreditor Agreement, the owner
of the related Serviced Companion Mortgage Loan has agreed that the Master
Servicer and the Special Servicer are authorized and obligated to service and
administer the Serviced Companion Mortgage Loan pursuant to this Agreement. The
Master Servicer and the Trustee are, to the extent applicable, authorized and
directed to execute and deliver to the owner or owners of the Serviced Companion
Mortgage Loan a letter agreement dated as of the Closing Date setting forth
provisions as to, among other things, the timing of remittances, advances and
reports relating to the Serviced Companion Mortgage Loan, and references herein
to the related Loan Pair Intercreditor Agreement shall be construed to refer to
such Loan Pair Intercreditor Agreement and such letter agreement taken together,
as applicable. To the extent that the Master Servicer and/or the Trustee have
duties and obligations under any such letter agreement, each successor master
servicer and/or successor trustee, respectively, under this Agreement shall
perform such duties and satisfy such obligations.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The Master Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. Other than with respect to the agreements with any
Primary Servicer or the Sub-Servicers under agreements that are in effect as of
the Closing Date, the terms of any arrangement or agreement between the Master
Servicer and a Sub-Servicer shall provide that such agreement or arrangement may
be terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such Master Servicer is terminated in accordance with
this Agreement. In addition, none of the Trustee, the Special Servicer, the
Paying Agent, the Certificateholders, the holder of any Serviced Companion
Mortgage Loan or the holder of any B Note shall have any direct obligation or
liability (including, without limitation, indemnification obligations) with
respect to any Sub-Servicer. The Master Servicer shall pay the costs of
enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific
192
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any primary
servicing agreement or sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
a Sub-Servicer, or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee,
the Paying Agent, the Special Servicer and the Certificateholders for the
servicing and administering of the applicable Mortgage Loans, the B Notes and
the Serviced Companion Mortgage Loans in accordance with (and subject to the
limitations contained within) the provisions of this Agreement without
diminution of such obligation or liability by virtue of indemnification from a
Sub-Servicer and to the same extent and under the same terms and conditions as
if the Master Servicer alone were servicing and administering the Mortgage
Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicer may appoint one or more sub-servicers to perform all or any portion of
its duties hereunder for the benefit of the Trustee and the Certificateholders,
provided, however, that after the Closing Date, for so long (but only for so
long) as the Trust, and, with respect to any Serviced Companion Mortgage Loan,
the trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, no Master Servicer or Special Servicer shall
enter into a sub-servicing agreement with any party that is a Prohibited Party.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's (if any) and each Seller
Sub-Servicer's rights and obligations under the respective Primary Servicing
Agreement or Sub-Servicing Agreement shall expressly survive a termination of
the Master Servicer's servicing rights under this Agreement; provided that the
applicable Primary Servicing Agreement or Sub-Servicing Agreement has not been
terminated in accordance with its provisions; (ii) any successor Master
Servicer, including, without limitation, the Trustee (if it assumes the
servicing obligations of the Master Servicer) shall be deemed to automatically
assume and agree to the then current Primary Servicing Agreement or
Sub-Servicing Agreements with Seller Sub-Servicers 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 Primary Servicer or Seller Sub-Servicer hereunder and/or under the
applicable Primary Servicing Agreement or the related Sub-Servicing Agreement,
without the prior written consent of such Primary Servicer or such Seller
Sub-Servicer (which consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to
the Primary Servicer under the Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer is neither a party to
the Primary Servicing Agreement or any Seller Sub-Servicing Agreement, nor is it
bound by any provision of the Primary Servicing Agreement or any Seller
Sub-Servicing Agreement. The Special Servicer hereby acknowledges the delegation
of rights and duties hereunder by the Master Servicer
193
pursuant to the provisions of any Primary Servicing Agreement or Seller
Sub-Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, any
sub-servicing agreement with a Sub-Servicer (excluding any Primary Servicing
Agreement) shall provide that (i) the failure of such Sub-Servicer to comply
with any of the requirements of Article XIII of this Agreement, (ii) at any time
when the Trust or, with respect to any Serviced Companion Mortgage Loan that is
deposited into an Other Securitization, such Other Securitization, is subject to
the reporting requirements of the Exchange Act, the failure of such Sub-Servicer
to comply with any requirements to deliver any items required by Items 1122 and
1123 of Regulation AB under any other pooling and servicing agreement relating
to any commercial mortgage loan securitization similar to the Trust or (iii) the
status of such Sub-Servicer as a Prohibited Party at any time during which the
Trust is subject to the reporting requirements of the Exchange Act shall
constitute an event of default by such Sub-Servicer under such sub-servicing
agreement upon the occurrence of which any of the Master Servicer, the Primary
Servicer, the Special Servicer or the Depositor shall have the right to
immediately terminate such Sub-Servicer and that such termination shall be
deemed for cause.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer
and any Primary Servicer and any agent of the Master Servicer or any Primary
Servicer in their individual or any other capacity may become the owner or
pledgee of Certificates with the same rights it would have if it were not the
Master Servicer or such agent. Any such interest of the Master Servicer or any
Primary Servicer or such agent in the Certificates shall not be taken into
account when evaluating whether actions of the Master Servicer are consistent
with its obligations in accordance with the Servicing Standard regardless of
whether such actions may have the effect of benefiting the Class or Classes of
Certificates owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE,
TAXES AND OTHER. Subject to the limitations set forth below, the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan) (A) a Standard Hazard Insurance Policy (that, if the terms of the
related Mortgage Loan documents and the related Mortgage so require or so permit
the holder of the Mortgage Loan to require, contains no exclusion for damages
due to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance
Act of 2002) and which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding Principal
Balance of such Mortgage Loan and any related B Note or Serviced Companion
Mortgage Loan, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause and (B) any other insurance coverage for
a Mortgage Loan which the related Mortgagor is required to maintain under the
related Mortgage, provided the Master Servicer shall not be required to maintain
earthquake insurance on any Mortgaged Property unless such insurance was
required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at commercially reasonable rates. If the related
Mortgagor does not maintain the insurance set forth in clauses (A) and (B)
above, then the Master Servicer shall cause such insurance to be maintained with
a Qualified Insurer. The Master Servicer shall be deemed to have satisfied its
194
obligations with respect to clause (A) above if the Mortgagor maintains, or the
Master Servicer shall have otherwise caused to be obtained, a Standard Hazard
Insurance Policy that is in compliance with the related Mortgage Loan documents,
and, if required by such Mortgage Loan documents or if such Mortgage Loan
documents permit the holder of the Mortgage Loan to require, the Mortgagor pays,
or the Master Servicer shall have otherwise caused to be paid, the premium
required by the related insurance provider that is necessary to avoid an
exclusion in such policy against "acts of terrorism" as defined by the Terrorism
Risk Insurance Act of 2002, to the extent that coverage under such a
nonexclusion is available at a commercially reasonable rate (subject to the
conditions regarding terrorism insurance coverage described further below in
this subsection).
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by the
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to cause the Mortgagor to maintain
or itself obtain insurance coverage to the extent the Trustee as mortgagee does
not have an insurable interest or beyond what is available on commercially
reasonable terms at a cost customarily acceptable (in each case, as determined
by the Master Servicer, which shall be entitled to rely, at its sole expense, on
insurance consultants in making such determination, consistent with the
Servicing Standard) and consistent with the Servicing Standard; provided, that
the Master Servicer shall be obligated to cause the Mortgagor to maintain or
itself obtain insurance against property damage resulting from terrorism or
similar acts if the terms of the related Mortgage Loan documents and the related
Mortgage so require unless the Master Servicer determines that (i) such
insurance is not available at any rate or (ii) such insurance is not available
at commercially reasonable rates and such hazards are not at
195
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; provided, that such determination must be made by
the Master Servicer not less frequently (but need not be made more frequently)
than annually, but in any event, shall be made on the approximate date on (but
not later than sixty (60) days thereafter) which the Master Servicer receives
notice of the renewal, replacement or cancellation of coverage (as evidenced by
the related insurance policy or insurance certificate). Notwithstanding the
limitation set forth in the preceding sentence, if the related Mortgage Loan
documents and the related Mortgage require the Mortgagor to maintain insurance
against property damage resulting from terrorism or similar acts, the Master
Servicer shall prior to availing itself of any limitation described in that
sentence with respect to any Mortgage Loan (or any component loan of an A/B
Mortgage Loan) that has a principal balance in excess of $2,500,000, obtain the
approval or disapproval of the Special Servicer and the Operating Adviser
(subject to the penultimate paragraph of Section 9.39). The Master Servicer
shall be entitled to rely on the determination of the Special Servicer made in
connection with such approval or disapproval. The Special Servicer shall decide
whether to withhold or grant such approval in accordance with the Servicing
Standard. If any such approval has not been expressly denied within seven (7)
Business Days of receipt by the Special Servicer and Operating Adviser from the
Master Servicer of the Master Servicer's determination and analysis and all
information reasonably requested by the Special Servicer and reasonably
available to the Master Servicer in order to make an informed decision, such
approval shall be deemed to have been granted. The Master Servicer shall notify
the holder of the related Serviced Companion Mortgage Loan of any determination
that it makes pursuant to clauses (i) and (ii) above with respect to any
Serviced Pari Passu Mortgage Loan.
The Master Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 8.6 either (i) if the Master
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer or (ii) if the Master
Servicer, provided that its long-term rating is not less than "A" by Fitch and
by S&P, self-insures for its obligations as set forth in the first paragraph of
this Section 8.6. In the event that the Master Servicer shall cause any Mortgage
Loan to be covered by such a master force placed or blanket insurance policy,
the incremental cost of such insurance allocable to such Mortgage Loan (i.e.,
other than any minimum or standby premium payable for such policy whether or not
any Mortgage Loan is then covered thereby), if not borne by the related
Mortgagor, shall be paid by the Master Servicer as a Servicing Advance. If such
policy contains a deductible clause, the Master Servicer shall, if there shall
not have been maintained on the related Mortgaged Property a policy complying
with this Section 8.6 and there shall have been a loss that would have been
covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, any Serviced
196
Companion Mortgage Loan and any B Note, the Master Servicer agrees to present,
on its behalf and on behalf of the Trustee and the holders of any Serviced
Companion Mortgage Loan or any B Note, claims under any such master force placed
or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall, except in the case of
Mortgage Loans under which Escrow Amounts are not held by the Master Servicer,
(i) obtain all bills for the payment of such items (including renewal premiums),
and (ii) effect payment of all such bills, taxes and other assessments with
respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts as
allowed under the terms of the related Mortgage Loan. If a Mortgagor fails to
make any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer in accordance with the Servicing Standard shall use
its reasonable efforts to pay as a Servicing Advance the amount necessary to
effect the payment of any such item prior to such penalty or termination date,
subject to Section 4.4 hereof. No costs incurred by the Master Servicer or the
Trustee as the case may be, in effecting the payment of taxes and assessments on
the Mortgaged Properties and related insurance premiums and ground rents shall,
for the purpose of calculating distributions to Certificateholders, be added to
the Principal Balance of the Mortgage Loans, notwithstanding that the terms of
such Mortgage Loans permit such costs to be added to the outstanding Principal
Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE AND DUE-ON-ENCUMBRANCE
CLAUSES; ASSUMPTION AGREEMENTS; OTHER PROVISIONS.
(a) (i) As to each Mortgage Loan (or a Serviced Companion
Mortgage Loan or B Note) which contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(A) provides that such Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note) shall (or may at the
mortgagee's option) become due and payable upon (i) the full
or partial sale or other transfer of an interest in the
related Mortgaged Property or (ii) a sale or transfer of
direct or indirect ownership interests in the related
Mortgagor;
(B) provides that such Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note) may not be assumed without
the consent of the mortgagee in connection with any such sale
or other transfer; or
(C) provides that such Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note) or direct or indirect
ownership interests in the related Mortgagor may be assumed or
transferred without the consent of the mortgagee provided
certain conditions set forth in the Mortgage Loan documents
are satisfied;
197
the Master Servicer shall forward to the Special Servicer any request for
a waiver thereof, and the Special Servicer shall, if and to the extent
necessary, enforce such due-on-sale clause. For the avoidance of doubt, the
Master Servicer may not waive any due-on-sale clause in, or consent to the
assumption of, any Mortgage Loan (or Serviced Companion Mortgage Loan or B
Note), or make any determination with respect to any Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note), which by its terms permits a transfer or
assumption of the related Mortgage Loan (or Serviced Companion Mortgage Loan or
B Note) without lender consent provided certain conditions are satisfied, that
such conditions have been satisfied. The Special Servicer shall enforce such
due-on-sale clause unless the Special Servicer determines, in accordance with
the Servicing Standard, that (1) not declaring an Event of Default (as defined
in the related Mortgage Loan documents) or (2) granting such consent, as
applicable, would be likely to result in a greater recovery (or an equal
recovery, provided the other conditions for an assumption or waiver of a
due-on-sale clause are met), on a present value basis (discounting at the
related Mortgage Rate), than would enforcement of such clause or the failure to
grant such consent. If the Special Servicer determines that (1) not declaring an
Event of Default (as defined in the related Mortgage Loan documents) or (2)
granting such consent, as applicable, would be likely to result in a greater
recovery (or an equal recovery, provided that the other conditions for an
assumption or waiver of a due-on-sale clause are met), the Special Servicer
shall take or enter into an assumption agreement from or with the proposed
transferee as obligor thereon, provided that (x) the credit status of the
prospective transferee is in compliance with the Servicing Standard and the
terms of the related Mortgage Loan documents and (y) with respect to any
Mortgage Loan which is a Significant Mortgage Loan, the applicable Special
Servicer shall have received Rating Agency Confirmation that such assumption
would not, in and of itself, cause a downgrade, qualification or withdrawal of
any of the then-current ratings assigned to the Certificates. To the extent
permitted by the related Mortgage Loan documents, the Special Servicer shall use
reasonable efforts to cause the related Mortgagor to pay the costs of such
Rating Agency Confirmation, otherwise, such costs shall be a Trust expense.
(ii) Notwithstanding the provisions of any Mortgage Loan,
foreclosure by the holder of a mezzanine loan on any collateral securing a
mezzanine loan to an affiliate of the related Mortgagor shall not, for
purposes of this Agreement, be deemed to be a violation of the due-on-sale
clause of the related Mortgage Loan documents or of clause (i) of this
Section 8.7(a) so long as the foreclosing party is a Permitted Mezzanine
Loan Holder, and other material requirements of the related intercreditor
agreement are satisfied.
(iii) Neither the Master Servicer nor the Special Servicer
shall (x) consent to the foreclosure of any mezzanine loan other than by a
Permitted Mezzanine Loan Holder or (y) consent to the transfer of any
mezzanine loan except to a Permitted Mezzanine Loan Holder, except, in
each case, as otherwise provided in Section 8.7(a)(i). Neither the consent
of the Master Servicer nor the consent of the Special Servicer shall be
required for the foreclosure by a Permitted Mezzanine Loan Holder if an
event of default has been declared under the related Mortgage Loan(s) (and
each Rating Agency has been notified of such event of default), except as
set forth in any related intercreditor agreement. In no event shall the
holder of a mezzanine loan be required to pay any assumption fee,
modification fee or other service charge in connection with any
foreclosure upon any collateral securing such mezzanine loan, transfer of
ownership of
198
the related Mortgaged Property to such holder of such mezzanine loan
and/or assumption of the related Mortgage Loan; provided, that such holder
of such mezzanine loan may be required to reimburse the Master Servicer or
Special Servicer for any costs or expenses incurred by it in connection
with such foreclosure, transfer and/or assumption. Nothing herein shall
prevent a holder of a mezzanine loan from appointing a receiver or trustee
with respect to any collateral securing such mezzanine loan, foreclosing
upon any reserves, escrow accounts or cash collateral accounts pledged
under the related mezzanine loan (provided none of such accounts have been
pledged under the related Mortgage Loan) or otherwise taking an assignment
of any cash flows from any collateral securing such mezzanine loan.
(iv) Notwithstanding anything herein to the contrary, the
Master Servicer shall approve and close, without the consent of the
Special Servicer or the Operating Advisor, all initial syndications of
tenant-in-common interests, provided such syndications are specifically
permitted by and in accordance with the related loan documents for any
Mortgage Loan (other than a non-serviced Mortgage Loan) or serviced whole
loan that is not a Specially Serviced Mortgage Loan. Upon completion of
the initial transfer(s) pursuant to such a syndication, the Master
Servicer shall promptly provide notice thereof by electronic mail to the
Special Servicer and the Operating Advisor, which notice shall also advise
the Special Servicer and the Operating Advisor as to (i) the total number
of transfers with respect to such Mortgage Loan or serviced whole Loan
that the Master Servicer has approved and closed as of the date of such
initial transfers(s) and (ii) the expiration date (if any) by which all
such transfer(s) pursuant to such syndication must occur pursuant to the
related loan documents. Upon the earlier of the completion of the initial
syndication or the expiration date (if any) for which such initial notice
was provided, the Master Servicer shall promptly provide notice by
electronic mail to the Special Servicer and the Operating Advisor advising
as to (i) whether such tenant-in-common syndication is complete and (ii)
the total number of transfers with respect to such Mortgage Loan or
serviced whole loan that the Master Servicer has approved and closed as of
such expiration or completion date. All transfers of a tenant-in-common
interest subsequent to the initial syndication shall be processed and
approved solely by the Special Servicer. Any request for a modification to
or extension of the final initial syndication date respecting any such
tenant-in-common transfers or increase in the permitted number of
tenant-in-common interests under the initial syndication shall be
processed and approved solely by the Special Servicer.
(b) (i) As to each Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note) which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(A) provides that such Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note) shall (or, at the
mortgagee's option, may) become due and payable upon (x) the
creation of any additional lien or other encumbrance on the
related Mortgaged Property or (y) an encumbrance, pledge or
hypothecation of direct or indirect ownership interests in the
related Mortgagor or its owners (including any incurrence of
mezzanine financing secured by ownership interests in the
related
199
Mortgagor or its owners or the creation of preferred equity in
the related Mortgagor or its owners); or
(B) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on
the related Mortgaged Property or direct or indirect ownership
interests in the related Mortgagor; or
(C) provides that such Mortgaged Property or direct or
indirect ownership interests in the related Mortgagor may be
further encumbered without the consent of the mortgagee
provided certain conditions set forth in the Mortgage Loan
documents are satisfied;
the Master Servicer shall forward to the Special Servicer any request for
a waiver thereof, and the Special Servicer shall, if and to the extent
necessary, enforce such due-on-encumbrance clause. For the avoidance of doubt,
the Master Servicer may not waive any due-on-encumbrance clause in, or consent
to the creation of any such additional lien or other encumbrance on the related
Mortgaged Property securing, any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), or make any determination with respect to any Mortgage Loan (or
Serviced Companion Mortgage Loan or B Note), which by its terms permits
encumbrance without lender consent provided certain conditions are satisfied,
that such conditions have been satisfied. The Special Servicer shall enforce
such due-on-encumbrance clause unless the Special Servicer: (x) determines, in
accordance with the Servicing Standard, that (1) not declaring an event of
default under such Mortgage Loan or (2) granting such consent, as applicable,
would result in a greater or equal recovery on a present value basis
(discounting at the related Mortgage Rate) than would enforcement of such clause
or the failure to grant such consent; and (y) (A) with respect to any Mortgage
Loan which (i) is a Significant Mortgage Loan or represents 2% or more of the
aggregate outstanding principal balances of all of the Mortgage Loans in the
Trust or (ii) by itself, or as part of a Cross-Collateralized Loan group or
group of Mortgage Loans with affiliated Mortgagors has (a) a Loan-to-Value Ratio
equal to or greater than 85% or (b) a Debt Service Coverage Ratio equal to or
less than 1.2x (in each case, treating the existing debt on the subject
Mortgaged Property and the proposed additional debt as if such total debt were a
single Mortgage Loan), receives from S&P and (B) with respect to any Mortgage
Loan that is one of the ten largest Mortgage Loans by Stated Principal Balance
of all Mortgage Loans at such time (treating any group of Cross-Collateralized
Mortgage Loans or any group of Mortgage Loans with affiliated Mortgagors as a
single Mortgage Loan), receives from Fitch, prior Rating Agency Confirmation
that (1) not declaring an event of default under such Mortgage Loan or (2)
granting such consent, as applicable, would not, in and of itself, cause a
downgrade, qualification or withdrawal of any of the then-current ratings
assigned to the Certificates. To the extent permitted by the related Mortgage
Loan documents, the Special Servicer shall use reasonable efforts to cause the
Mortgagor to pay the costs associated with such Rating Agency Confirmation,
otherwise, such costs shall be a Trust expense.
If the Special Servicer, in accordance with the Servicing Standard,
determines with respect to any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), which by its terms permits transfer, assumption or further
encumbrance without lender consent provided certain conditions are satisfied,
that such conditions have not been satisfied, then the Master Servicer will use
reasonable efforts to not permit the transfer, assumption or further
200
encumbrance with respect to such Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note).
(c) [RESERVED].
(d) Except as otherwise permitted by Section 8.18, the Special
Servicer shall not agree to modify, waive or amend any payment term of any
Mortgage Loan (or Serviced Companion Mortgage Loan or B Note) in connection with
the taking of, or the failure to take, any action pursuant to this Section 8.7.
(e) With respect to any Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note) that permits the related Mortgagor to incur subordinate
indebtedness secured by the related Mortgaged Property, the Master Servicer or
the Special Servicer, as applicable, shall enforce the rights of the lender, if
any, under the related Mortgage Loan documents to require such Mortgagor to
require the lender of such subordinate indebtedness to enter into a
subordination and standstill agreement with the Trust.
(f) With respect to any Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note), subject to the related Mortgage Loan documents,
neither the Master Servicer nor the Special Servicer shall permit the related
Mortgagor to substitute any real property, any rights with respect to real
property, or any other real property interest whatsoever for the Mortgaged
Property securing such Mortgage Loan (or Serviced Companion Mortgage Loan or B
Note) as of the Closing Date without receipt of an Opinion of Counsel, at the
expense of the Mortgagor, to the effect that the substitution will not cause the
related Mortgage Loan to fail to qualify as a "qualified mortgage" as defined
under Section 860G(a)(3) of the Code while such Mortgage Loan is owned by either
REMIC Pool.
(g) In addition, the Special Servicer acknowledges that, pursuant
to each Primary Servicing Agreement with a Primary Servicer (if any) and
Sub-Servicing Agreement, the Master Servicer has delegated certain tasks, rights
and obligations with respect to certain of the Mortgage Loans.
(h) With respect to any Loan Pair or A/B Mortgage Loan,
notwithstanding anything contained in this Section 8.7, with respect to any
matter contained in this Section 8.7 that requires the consent of the Master
Servicer, the Special Servicer or the Operating Adviser, as applicable, such
consent shall be obtained in accordance with the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable, and within the time periods
set forth therein.
SECTION 8.8 TRUSTEE AND CUSTODIAN TO COOPERATE; RELEASE OF
CUSTODIAN MORTGAGE FILES. Upon the payment in full of any Mortgage Loan, the
complete defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan, the purchase of an A Note by the holder of a B
Note pursuant to the related Intercreditor Agreement, or the receipt by the
Master Servicer of a notification that payment in full (or such payment, if any,
in connection with the satisfaction and discharge in full of any Specially
Serviced Mortgage Loan) will be escrowed in a manner customary for such
purposes, and upon notification by the Master Servicer in the form of a
certification (which certification shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account have been or will be so
deposited) of a
201
Servicing Officer and a request for release of the Custodian Mortgage File in
the form of Exhibit C hereto the Custodian shall promptly release the related
Custodian Mortgage File to the Master Servicer and the Custodian shall execute
and deliver to the Master Servicer the deed of reconveyance or release,
satisfaction or assignment of mortgage or such instrument releasing the lien of
the Mortgage, as directed by the Master Servicer together with the Mortgage Note
with written evidence of cancellation thereon and, if the related Mortgage has
been recorded in the name of MERS or its designee, the Master Servicer shall
take all necessary action to reflect the release of such Mortgage on the records
of MERS. The provisions of the immediately preceding sentence shall not, in any
manner, limit or impair the right of the Master Servicer to execute and deliver,
on behalf of the Trustee, the Custodian, the Certificateholders, the holder of
any Serviced Companion Mortgage Loan, the holder of any B Note or any of them,
any and all instruments of satisfaction, cancellation or assignment without
recourse, representation or warranty, or of partial or full release or discharge
and all other comparable instruments, with respect to the Mortgage Loans, any
Serviced Companion Mortgage Loan or any B Note, and with respect to the
Mortgaged Properties held for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Distribution Account but shall be paid
by the Master Servicer except to the extent that such expenses are paid by the
related Mortgagor in a manner consistent with the terms of the related Mortgage
and applicable law. From time to time and as shall be appropriate for the
servicing of any Mortgage Loan, including for such purpose, collection under any
policy of flood insurance, any Servicer Fidelity Bond or Errors and Omissions
Policy, or for the purposes of effecting a partial or total release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Custodian Mortgage File, the Custodian shall, upon request of
the Master Servicer and the delivery to the Custodian of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Custodian Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, the Custodian and Paying Agent, to the extent
required by this Agreement, all documents and instruments coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee and the Paying Agent for any funds received or otherwise collected
thereby, including Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. All Servicer Mortgage Files and funds collected or held by, or
under the control of, the Master Servicer in respect of any Mortgage Loans (or
any B Note or Serviced Companion Mortgage Loan), whether from the collection of
principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, including any funds on deposit in the Certificate Account (or any A/B
Loan Custodial Account or any Serviced Companion Mortgage Loan Custodial
Account), shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders (or the holder of any B Note or Serviced Companion
Mortgage Loan, as applicable) and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Master Servicer agrees that it shall not create, incur or subject any
Servicer Mortgage Files or Custodian Mortgage File or any funds that are
deposited in the Certificate Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee or the Paying Agent,
to any claim, lien, security
202
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Servicer
Mortgage Files or Custodian Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee, which shall be payable
by the Trust from amounts held in the Certificate Account (and from the related
A/B Loan Custodial Account to the extent related solely to a B Note and from the
related Serviced Companion Mortgage Loan Custodial Account to the extent related
solely to a Serviced Companion Mortgage Loan) or otherwise collected from the
Mortgage Loans as provided in Section 5.2. The Master Servicer shall be required
to pay to the applicable Primary Servicer its Primary Servicing Fees, which
shall be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the applicable Primary Servicer from amounts transferred to the
Master Servicer in accordance with the terms of the applicable Primary Servicing
Agreement. The Master Servicer shall be required to pay to the holders of the
rights to the Excess Servicing Fees, the Excess Servicing Fees, which shall be
payable by the Trust as provided in Section 5.1(c), unless otherwise retained by
the holders of such rights. Notwithstanding anything herein to the contrary, if
any of the holders of the right to receive Excess Servicing Fees resigns or is
no longer Master Servicer or applicable Primary Servicer, as applicable, for any
reason, it will continue to have the right to receive its portion of the Excess
Servicing Fee, and any of the holders of the right to receive Excess Servicing
Fees shall have the right to assign its portion of the Excess Servicing Fee,
whether or not it is then acting as Master Servicer or Primary Servicer
hereunder. The Master Servicer shall also be entitled to the Primary Servicing
Fee, which shall be payable by the Trust from amounts held in the Certificate
Account (or a sub-account thereof) or otherwise collected from the Mortgage
Loans as provided in Section 5.2, provided that the Primary Servicing Fee
payable to the Master Servicer shall only be collected from the Mortgage Loans
set forth on Schedule III, except as provided in Section 8.28(b).
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, extension fees, servicing fees, default
interest (excluding default interest allocable to any B Note if the holder of
the B Note has cured the related default pursuant to the terms of the related
Intercreditor Agreement) payable at a rate above the Mortgage Rate (net of any
amount used to pay Advance Interest, Additional Trust Expenses and Special
Servicing Fees incurred in respect of the related Mortgage Loan (or, with
respect to any Serviced Pari Passu Mortgage Loan, the applicable Loan Pair),
Modification Fees, forbearance fees, Late Fees (net of any amount used to pay
Advance Interest, Additional Trust Expenses and Special Servicing Fees incurred
in respect of the related Mortgage Loan and excluding Late Fees allocable to any
B Note if the holder of the B Note has cured the related default pursuant to the
terms of the related Intercreditor Agreement) or other usual and customary
charges and fees actually received from Mortgagors shall be retained by the
Master Servicer, provided that the Master Servicer shall be entitled to receive
such compensation as set forth in Section 5.2(a)(i). If the Master Servicer
collects any amount payable to the Special Servicer hereunder in connection with
an REO Mortgage Loan or Specially Serviced Mortgage Loan, the Master Servicer
shall promptly remit such amount to the Special Servicer as provided in Section
5.2. The Master Servicer shall be
203
required to pay (in the manner otherwise provided herein) all applicable
expenses incurred by it in connection with its servicing activities hereunder.
(c) The Master Servicer shall also be entitled to additional
servicing compensation of (i) an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution
Date, (ii) interest or other income earned on deposits in the Certificate
Account and the Distribution Account (but only to the extent of the net
investment earnings, if any, with respect to each such account), and, (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall
deliver to the Paying Agent, (or with respect to a Serviced Companion Mortgage
Loan, to the holder thereof or its servicer), no later than 1:00 p.m., New York
City time, on the related Report Date, the Master Servicer Remittance Report
with respect to such Distribution Date including any information regarding
prepayments made pursuant to Section 5.2(b) and (ii) the Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of the
P&I Advance, if any, to be made by the Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for the Master Servicer to satisfy its duties in this Section 8.11. The Master
Servicer Remittance Report shall be updated no later than 2:00 p.m. on the
second Business Day prior to the Distribution Date to reflect any payment on a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note for which the
Scheduled Payment is paid on a Due Date (or within its grace period) that occurs
after the end of the related Collection Period and the Master Servicer shall
notify the Paying Agent on the Report Date that such an updated Master Servicer
Remittance Report is to be provided.
(b) The Master Servicer shall deliver to the Trustee, the Paying
Agent and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account, and shall deliver to each holder of a B Note and Serviced Companion
Mortgage Loan within 30 days following each Distribution Date a statement
setting forth the status of the related A/B Loan Custodial Account and Serviced
Companion Mortgage Loan Custodial Account, as of the close of business on such
Distribution Date showing, for the period covered by such statement, the
aggregate of transfers in and transfers from or deposits in or withdrawals from
such A/B Loan Custodial Account or Serviced Companion Mortgage Loan Custodial
Account, as applicable.
(c) The Master Servicer shall promptly inform the Special Servicer
of the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
204
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the
contrary, the Master Servicer shall not have any obligation (other than to the
Special Servicer and, to the extent provided in the last sentence of Section
8.14, the Operating Adviser) to deliver any statement, notice or report that is
then made available on the Master Servicer's or the Paying Agent's internet
website, provided that it has notified all parties entitled to delivery of such
reports, by electronic mail or other notice provided in this Agreement, to the
effect that such statements, notices or reports shall thereafter be made
available on such website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to
the Paying Agent, and the holder of any Serviced Companion Mortgage Loan (in
respect of such Serviced Companion Mortgage Loan) the following CMSA Reports
with respect to the Mortgage Loans (and, if applicable, the related REO
Properties and, to the extent received from the applicable Non-Serviced Mortgage
Loan Master Servicer, any Non-Serviced Mortgage Loan) providing the required
information as of the related Determination Date upon the following schedule:
(i) a Comparative Financial Status Report and the CMSA Financial File (it being
understood that the applicable Primary Servicer is required to deliver the CMSA
Financial File only quarterly) not later than each Report Date, commencing in
September 2007; (ii) a CMSA Operating Statement Analysis Report and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
CMSA Watch List in accordance with and subject to the terms of Section 8.11(h)
on each Report Date, commencing in September 2007; (iv) a Loan Set-Up File (with
respect to the initial Distribution Date only) not later than the Report Date in
August 2007; (v) a Loan Periodic Update File not later than each Report Date
commencing in August 2007 (which Loan Periodic Update File shall be accompanied
by a CMSA Advance Recovery Report); (vi) a Property File not later than each
Report Date, commencing in September 2007; (vii) a Delinquent Loan Status Report
on each Report Date, commencing in September 2007; (viii) an Historical Loan
Modification Report not later than each Report Date, commencing in September
2007; and (ix) an REO Status Report on each Report Date, commencing in September
2007. The information that pertains to Specially Serviced Mortgage Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer in writing and on a
computer readable medium reasonably acceptable to the Master Servicer and the
Special Servicer one (1) Business Day after the Determination Date prior to the
related Master Servicer Remittance Date in the form required under Section 9.32.
The Master Servicer's responsibilities under this Section 8.11(g) with respect
to REO Mortgage Loans and Specially Serviced Mortgage Loans shall be subject to
the satisfaction of the Special Servicer's obligations under Section 9.32. The
reporting obligations of the Master Servicer in connection with any A/B Mortgage
Loan shall be construed to refer only to such information regarding the A/B
Mortgage Loan (and its related Mortgaged Property) and by reference to the
related A Note only, but whenever the Master Servicer remits funds to the holder
of the related B Note, it shall thereupon deliver to such holder a remittance
report identifying the amounts in such remittance.
205
(h) For each Distribution Date, the Master Servicer shall deliver
to the Paying Agent (and solely with respect to any A/B Mortgage Loan, the
holder of the related B Note and solely with respect to any Loan Pair, the
holder of the related Serviced Companion Mortgage Loan), not later than the
related Report Date, a CMSA Watch List. The Master Servicer shall list any
Mortgage Loan on the CMSA Watch List as to which any of the events specified in
the CMSA Watch List published by the CMSA for industry use has occurred.
(i) If the Master Servicer, in accordance with the Servicing
Standard, seeks to effect a drawing on any letter of credit or debt service
reserve account under which the Trust has rights as the holder of any Mortgage
Loan for purposes other than payment or reimbursement of amounts contemplated in
and by a reserve or escrow agreement (other than after a default under an
applicable Mortgage Loan or B Note), the Master Servicer shall, deliver notice
thereof to the Special Servicer, the Operating Adviser, the holder of a B Note,
if applicable, and the Paying Agent, which notice shall set forth (i) the unpaid
Principal Balance of such Mortgage Loan or B Note immediately before and
immediately after the drawing, and (ii) a brief description of the circumstances
that in the Master Servicer's good faith and reasonable judgment and in
compliance with the Servicing Standard will entitle the Master Servicer to make
such drawing. The Special Servicer shall have five Business Days to consent to
such drawing, which consent may be communicated by facsimile transmission or
e-mail and shall not be unreasonably withheld. If the Special Servicer does not
respond within such five Business Day period, consent shall be deemed to have
been given.
(j) The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, but not any Primary Servicer, shall prepare and
deliver (or, other than as relates to the Special Servicer, make available on
their respective websites) to the Operating Adviser the reports and information
described in Exhibit BB (to the extent not otherwise delivered pursuant to this
Agreement) in the form and format and within the time frame set forth therein.
SECTION 8.12 RESERVED.
SECTION 8.13 RESERVED.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING
THE MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year), commencing with respect to the
quarter ending on September 30, 2007, in each case for the trailing or quarterly
information received, the Master Servicer (in the case of Mortgage Loans that
are not Specially Serviced Mortgage Loans) or the Special Servicer (in the case
of Specially Serviced Mortgage Loans) shall deliver or make available
electronically to the Paying Agent and the Operating Adviser a CMSA Operating
Statement Analysis Report and a CMSA Financial File for each Mortgaged Property
(in electronic format), prepared using the non-normalized quarterly and
normalized year-end operating statements and rent rolls received from the
related Mortgagor. Not later than the Report Date occurring in June of each year
beginning in 2007 for year-end 2006, the Master Servicer (in the case of
Mortgage Loans that are not Specially Serviced Mortgage Loans) or the Special
Servicer (in the case of Specially Serviced Mortgage Loans) shall deliver or
make available electronically to the Paying Agent and the Operating Adviser a
CMSA Operating Statement Analysis Report, a CMSA Financial File and an NOI
Adjustment Worksheet for each Mortgage Loan (in electronic format),
206
based on the most recently available year-end operating statements and most
recently available rent rolls of each applicable Mortgagor (to the extent
provided to the Master Servicer by or on behalf of each Mortgagor, or, in the
case of Specially Serviced Mortgage Loans, as provided to the Special Servicer,
which the Special Servicer shall forward to the Master Servicer on or before May
31 of each such year), containing such information and analyses for each
Mortgage Loan provided for in the respective forms of CMSA Operating Statement
Analysis Report, CMSA Financial File and an NOI Adjustment Worksheet as would
customarily be included in accordance with the Servicing Standard including,
without limitation, Debt Service Coverage Ratios and income, subject, in the
case of any Non-Serviced Mortgage Loan, to the receipt of such report from the
applicable Non-Serviced Mortgage Loan Master Servicer or the applicable
Non-Serviced Mortgage Loan Special Servicer. The Master Servicer shall make
reasonable efforts, consistent with the Servicing Standard, to obtain such
reports from the applicable Non-Serviced Mortgage Loan Master Servicer or the
applicable Non-Serviced Mortgage Loan Special Servicer. In addition, the Master
Servicer shall deliver (which delivery shall be by electronic means) to the
Operating Adviser, and upon request the Master Servicer shall make available to
the Rating Agencies, the Special Servicer, the Paying Agent, the Trustee and the
holder of any Serviced Companion Mortgage Loan, within 30 days following receipt
thereof by the Master Servicer, copies of any annual, monthly or quarterly
financial statements and rent rolls collected with respect to the Mortgaged
Properties. As and to the extent reasonably requested by the Special Servicer,
the Master Servicer shall make inquiry of any Mortgagor with respect to such
information or as regards the performance of the related Mortgaged Property in
general. The Paying Agent shall provide or make available electronically at no
cost to the Certificateholders or Certificate Owners, the Rating Agencies, the
Trustee, the Special Servicer, the Operating Adviser, the Depositor and its
designees, the Placement Agent, the Underwriters, and any prospective investors
or Certificate Owners who provide the Paying Agent with an investor
certification satisfactory to the Paying Agent, and solely as it relates to any
A/B Mortgage Loan, to the holder of the related B Note and solely as it relates
to any Loan Pair, to the holder of the related Serviced Companion Mortgage Loan,
the CMSA Operating Statement Analysis Reports, CMSA Financial Files and NOI
Adjustment Worksheets set forth above pursuant to Section 5.4(a). The Master
Servicer (but not the Primary Servicer under the applicable Primary Servicing
Agreement) shall electronically deliver the CMSA Operating Statement Analysis
Report, the operating statements, rent rolls, property inspections and NOI
Adjustment Worksheet for each Mortgage Loan to the Operating Adviser.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent
(in the case of clauses (i), (ii), (iii), (iv) and (v)) and the Trustee (in the
case of clauses (iii), (iv) and (v)) shall make available at its Corporate Trust
Office, during normal business hours, upon reasonable advance written notice for
review by any Certificateholder, any Certificate Owner, any Seller, the Primary
Servicer, any Placement Agent, any Underwriter, each Rating Agency, the Paying
Agent, the Trustee or the Depositor (and the holder of a B Note, if it relates
to a B Note and the holder of a Serviced Companion Mortgage Loan, if it relates
to a Serviced Companion Mortgage Loan), originals or copies of, among other
things, the following items: (i) this Agreement and any amendments thereto, (ii)
all final and released CMSA Operating Statement Analysis Reports and the Master
Servicer Remittance Reports, (iii) all Officer's Certificates (including
Officer's Certificates (and attachments thereto) evidencing any determination of
Nonrecoverable
207
Advances) delivered to the Trustee and the Paying Agent since the Closing Date,
(iv) all accountants' reports delivered to the Trustee and the Paying Agent
since the Closing Date and (v) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Master Servicer and/or the
Special Servicer. The Trustee and the Paying Agent will be permitted to require
payment of a sum to be paid by the requesting party (other than the Rating
Agencies, the Trustee, the Paying Agent, any Placement Agent or any Underwriter)
sufficient to cover the reasonable costs and expenses of making such information
available.
(b) Subject to the restrictions described below, the Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the Special Servicer, any Primary Servicer, the Seller, the
Placement Agent, the Underwriters, the Operating Adviser, any Certificateholder,
any holder of a Serviced Companion Mortgage Loan, any holder of a B Note or any
Certificate Owner, upon reasonable notice and during normal business hours,
reasonable access to all information referred to in Section 8.15(a) and any
additional relevant, non-attorney-client-privileged records and documentation
regarding the applicable Mortgage Loans, REO Property and all accounts,
insurance policies and other relevant matters relating to this Agreement (which
access may occur by means of the availability of information on the Master
Servicer's or the Paying Agent's internet website) or the electronic delivery of
such information to the requesting Person), in each case to the extent in its
respective possession, and access to Servicing Officers of the Master Servicer
responsible for its obligations hereunder. Copies of information or access will
be provided to Certificateholders and each Certificate Owner providing
satisfactory evidence of ownership of Certificates or beneficial ownership of a
Certificate, as the case may be, which may include a certification. Copies (or
computer diskettes or other digital or electronic copies of such information if
reasonably available in lieu of paper copies) of any and all of the foregoing
items shall be made available by the Master Servicer upon request; provided,
however, that the Master Servicer shall be permitted to require payment by the
requesting party (other than the Depositor, the Trustee, the Paying Agent, the
Special Servicer, the Operating Adviser, any Placement Agent, any Underwriter,
or any Rating Agency) of a sum sufficient to cover the reasonable expenses
actually incurred by the Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer
to confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report. Notwithstanding the above, the
Master Servicer shall not have any liability to the Depositor, the Trustee, the
Paying Agent, the Special Servicer, any Non-Serviced Mortgage Loan Master
Servicer, any Non-Serviced Mortgage Loan Special Servicer, any
Certificateholder, any Certificate Owner, any holder of a Serviced Companion
Mortgage Loan, any holder of a B Note, any Placement Agent, any Underwriter, any
Rating Agency or any other Person to whom it delivers information pursuant to
this Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any account
(including (x) with respect to any such claims relating to a Serviced Companion
Mortgage Loan, from amounts held in the related Serviced Companion Mortgage Loan
Custodial Account and (y) with respect to any such claims relating to a B Note,
from amounts held in the related A/B Loan Custodial Account) or
208
otherwise) shall hold harmless and indemnify the Master Servicer from any loss
or expense (including attorney fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Paying Agent, the Special Servicer, any Primary Servicer, the
Seller, any Placement Agent, any Underwriter, any Rating Agency and/or the
Certificateholders, the holder of a Serviced Companion Mortgage Loan, the holder
of a B Note or Certificate Owners. Any transmittal of information by the Master
Servicer to any Person other than the Trustee, the Paying Agent, the Master
Servicer, the Special Servicer, the Rating Agencies, the Operating Adviser or
the Depositor may be accompanied by a letter from the Master Servicer containing
a disclaimer as to confidentiality substantially similar to the following
provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any
person who possesses material, non-public information regarding the Trust
which issued Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12 from purchasing or selling
such Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You also
acknowledge and agree that such information is being provided to you for
the purpose of, and such information may be used only in connection with,
evaluation by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, the Master Servicer and the Special Servicer
shall, without charge, make a knowledgeable Servicing Officer available to
answer questions from the Operating Adviser during regular business hours at
such time and for such duration as the Master Servicer or Special Servicer, and
the Operating Adviser shall reasonably agree, regarding the performance and
servicing of the Mortgage Loans and REO Properties for which the Master Servicer
or the Special Servicer, as the case may be, is responsible. As a condition to
such
209
disclosure, the Operating Adviser shall execute a confidentiality agreement in
form reasonably acceptable to the Master Servicer, the Special Servicer and the
Operating Adviser.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent or
the Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof,
any Certificate Owner therein and to any prospective purchaser of the
Certificates or beneficial interest therein reasonably designated by the Paying
Agent or the Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Sections 5.4 and 8.15, any information prepared by the Master Servicer that is
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act, including,
without limitation, copies of the reports and information described in Sections
8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information directly, the
Depositor, the Placement Agent, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Luxembourg Paying Agent, the Placement Agent, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, the Placement Agent or the Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and
Non-Serviced Mortgage Loans, every calendar year beginning in 2008, or every
second calendar year beginning in 2009 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; (it being understood that
such Mortgaged Properties securing a Mortgage Loan or Loan Pair with a Principal
Balance of less than $2,000,000 will be inspected in the 2009 calendar year and
every second calendar year thereafter) provided that the Master Servicer shall,
at the expense of the Trust, inspect or cause to be inspected each Mortgaged
Property related to a Mortgage Loan that has a Debt Service Coverage Ratio that
falls below 1.0x and provided further, that with respect to any Mortgage Loan or
Loan Pair that has a Principal Balance of less than $2,000,000 and has been
placed on the CMSA Watch List, the Master Servicer shall, at the expense of the
Trust and at the request of the Operating Adviser, inspect or cause to be
inspected the related Mortgaged Property every calendar year beginning in 2008
so long as such Mortgage Loan or Loan Pair continues to be on the CMSA Watch
List; provided, if such Mortgage Loan or Loan Pair is no longer on the CMSA
Watch List at the time the inspection was scheduled, no such inspection shall be
required. The
210
Master Servicer shall prepare an Inspection Report relating to each inspection.
The Master Servicer shall promptly forward the applicable Inspection Report to
the Rating Agencies, the Placement Agent, the Underwriters, the Depositor, the
Trustee, the Paying Agent, the Operating Adviser, the Special Servicer, solely
as it relates to any Loan Pair, to the holder of the related Serviced Companion
Mortgage Loan, and solely as it relates to any A/B Mortgage Loan, to the holder
of the related B Note, and upon request, to any Certificateholder, any
Certificate Owner, any Seller and any Primary Servicer. The Special Servicer
shall have the right to inspect or cause to be inspected (at its own expense)
every calendar year any Mortgaged Property related to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan, provided that the Special Servicer
notifies the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
(a) Subject to the provisions of Section 8.19, Section 12.3 and
this Section 8.18 (and, in the case of any Loan Pair or A/B Mortgage Loan,
subject to the terms of the related Loan Pair Intercreditor Agreement or
Intercreditor Agreement, respectively), the Master Servicer and the Special
Servicer may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Mortgage Loan without the consent of the Trustee or
any Certificateholder.
(i) For any non-Specially Serviced Mortgage Loan (and
Serviced Companion Mortgage Loan or B Note), and subject to the rights of the
Special Servicer set forth below, the Master Servicer shall be responsible
subject to the other requirements of this Agreement with respect thereto, for
any request by a Mortgagor for the consent of the mortgagee or a modification,
waiver or amendment of any term thereof; provided that such consent or
modification, waiver or amendment would not (except as provided in Section 5.1)
affect the amount or timing of any scheduled payments of principal, interest or
other amounts payable under such Mortgage Loan, affect the obligation of the
related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or
permit a Principal Prepayment by the Mortgagor during a prepayment lockout
period, result in the release of the related Mortgagor from any material term
thereunder, waive any rights thereunder with respect to any guarantor thereof,
relate to the release or substitution of any material collateral for such
Mortgage Loan or, in the reasonable judgment of the Master Servicer, materially
impair the security for such Mortgage Loan or reduce the likelihood of timely
payments of amounts due thereon; and provided, further, that this Section
8.18(a)(i) does not apply to waivers contemplated by Section 8.2, Section 9.2 or
Section 8.7. To the extent consistent with the foregoing, and subject to the
provisions of this Section 8.18, including, without limitation, Section 8.18(g),
the Master Servicer shall be responsible for approvals or waivers or otherwise
take actions with respect to, as applicable, the following (the following items
not to be considered exclusive):
(A) approving routine leasing activity with respect to: (1)
leases for properties for less than the lesser of (a) 15,000 square
feet and (b) 20% of the related Mortgaged Property; provided that
(1) no subordination, non-disturbance and attornment agreement (an
"SNDA") exists with respect to such lease and (2) no such lease is a
Ground Lease; and provided further that 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
211
modification in connection with) an SNDA or approval of a lease that
contains an SNDA;
(B) approving annual budgets for the related Mortgaged
Property; provided that no such budget (1) relates to a fiscal year
in which an Anticipated Repayment Date occurs, (2) provides for the
payment of operating expenses in an amount equal to more than 110%
of the amounts budgeted therefor for the prior year or (3) provides
for the payment of any material expenses to any affiliate of the
Mortgagor (other than the payment of a management fee to any
property manager if such management fee is no more than the
management fee in effect on the Cut-off Date);
(C) [Reserved];
(D) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(E) releases of non-material parcels of a Mortgaged
Property; provided that the Master Servicer shall have determined
that no REMIC Pool will fail to qualify as a REMIC as a result
thereof and that no tax on "prohibited transactions" or
"contributions" after the Closing Date would be imposed on any REMIC
Pool as a result thereof; and provided, further that the Master
Servicer shall cause the Mortgagor to pay the costs (including
attorneys' fees and expenses) associated with the determination
described in clause (ii), provided, further, that releases as to
which the related Mortgage Loan documents expressly require the
related Mortgagor thereunder to make such releases upon the
satisfaction of certain terms or conditions shall be made as
required by such Mortgage Loan documents;
(F) with respect to any non-Specially Serviced Mortgage
Loans (or Serviced Companion Mortgage Loans or B Notes), 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 Mortgage Loan(s) or B Note(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 no REMIC
Pool will fail to qualify as a REMIC as a result thereof and that no
tax on "prohibited transactions" or "contributions" after the
Closing Date would be imposed on any REMIC Pool as a result thereof;
and provided, further that the Master Servicer shall cause the
Mortgagor to pay the costs (including attorneys' fees and expenses)
associated with the determination described in clause (ii);
212
(G) consenting to changing the property manager at the
request of the Mortgagor, for so long as, (A) the successor property
manager is not affiliated
with the Mortgagor and is a reputable manager of similar properties
and (B) the related Mortgage Loan has an unpaid principal balance of
less than $5,000,000;
(H) waive any Penalty Charges on any non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan; and
(I) disbursements of any earnouts or holdback amounts;
provided, however, 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 Section 8.7 is not
included within the scope of this clause (i), the Master Servicer shall forward
the Mortgagor's request to the Special Servicer for its approval; provided,
further, that with respect to any non-Specially Serviced Mortgage Loan set forth
on Schedule V and any request for the disbursement of any earnouts or holdback
amounts with respect to such non-Specially Serviced Mortgage Loan, it being
understood and agreed that for purposes of this Agreement, the disbursement of
earnouts or holdback amounts shall mean the disbursement or funding to a
Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the
loan proceeds of the applicable non-Specially Serviced Mortgage Loan until
certain conditions precedent thereto relating to the satisfaction of performance
related criteria (i.e., project reserve thresholds, lease-up requirements, sales
requirements, etc.), as set forth in the applicable Mortgage Loan documents have
been satisfied, the Master Servicer shall forward the Mortgagor's request to the
Special Servicer for processing; 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 is not included within the
scope of this clause (i), the Special Servicer shall be responsible for such
request in accordance with clause (ii) below.
(ii) The Special Servicers shall be responsible for any
request by a Mortgagor for the consent of the mortgagee and any modification,
waiver or amendment of any term of any Mortgage Loan for which the Master
Servicer is not responsible, as provided above, or if such consent, request,
modification, waiver or amendment relates to a Specially Serviced Mortgage Loan
or a Mortgage Loan that is on the most recent CMSA Servicer Watch List with
respect to a Mortgage Loan other, has a Debt Service Coverage Ratio (based on
the most recently received financial statements and calculated on a trailing
twelve month basis) less than the greater of 1.1x or 20% less than the Debt
Service Coverage Ratio as of the Cut-off Date or with respect to which an event
of default has occurred in the preceding 12 months.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be (i) in writing (except for waivers of Penalty Charges; provided,
however, that any waivers of Penalty Charges shall be reflected in the Master
Servicer's or Special Servicer's servicing records for the relevant Mortgage
Loan) and (ii) effected in accordance with the Servicing Standard.
213
(c) Neither the Master Servicer nor, except as provided in Section
8.18(d), the Special Servicer, on behalf of the Trustee, shall agree or consent
to any modification, waiver or amendment of any term of any non-Specially
Serviced Mortgage Loan if such modification, waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums and Yield
Maintenance Charges, but excluding any amounts payable as additional servicing
compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment
during any period in which the related Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage
or in connection with a defeasance or pursuant to Section 9.12, result in a
release of the lien of the Mortgage on any material portion of the related
Mortgaged Property; or
(iv) in the judgment of the Master Servicer or Special
Servicer, as applicable, otherwise materially impair the security for such
Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon;
unless either (x) the subject Mortgage Loan is in default or default is
reasonably foreseeable or (y) the Special Servicer has determined (and may rely
on an opinion of counsel in making the determination) that the modification,
waiver or amendment will not be a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury regulations section 1.860G-2(b).
Nothing contained in this Section 8.18(c) shall modify the scope of the
modifications, amendments, waivers and consents for Mortgage Loans for which the
Master Servicer and the Special Servicer, as applicable, are responsible under
Sections 8.18(a)(i) and (a)(ii).
(d) Notwithstanding anything herein to the contrary, with respect
to each Loan Pair, the Master Servicer shall be responsible for obtaining Rating
Agency Confirmation that a proposed action will not result in a downgrade,
qualification or withdrawal of any of the then-current ratings assigned to the
Certificates, but only to the extent such Rating Agency Confirmation is required
hereunder or under the terms of the relevant Mortgage Loan documents with
respect to any Mortgage Loan in such Loan Pair that is not a Specially Serviced
Mortgage Loan or REO Loan.
(e) Notwithstanding Sections 8.18(a)(i) and 8.18(c), but subject
to Sections 8.18(g) and 8.18(h), the Special Servicer may (i) reduce the amounts
owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce
the amount of the Monthly Payment on any Specially Serviced Mortgage Loan,
including by way of a reduction in the related Mortgage Rate, (iii) forbear in
the enforcement of any right granted under any Note or Mortgage relating to a
Specially Serviced Mortgage Loan, (iv) extend the maturity of any Specially
Serviced Mortgage Loan, (v) waive Excess Interest if such waiver conforms to the
Servicing Standard, (vi) permit the release or substitution of collateral for a
Specially Serviced Mortgage Loan and/or (vii) accept a Principal Prepayment
during any lockout period; provided that (A) the related
214
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the judgment of the Special Servicer, such default is reasonably foreseeable
and (B) in the sole good faith judgment of the Special Servicer and in
accordance with the Servicing Standard, such modification would not reduce the
recovery on the subject Mortgage Loan to Certificateholders (or, in the case of
a Loan Pair, Certificateholders and the holder of the related Serviced Companion
Mortgage Loan), as a collective whole, on a present value basis (the relevant
discounting of amounts that will be distributable to Certificateholders or the
holder of any related Serviced Companion Mortgage Loan to be performed at the
related Mortgage Rate).
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the prior paragraph of this Section 8.18(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination and the considerations of the Special Servicer forming
the basis of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Mortgage Loan or Mortgaged Property, the
cost of which Appraisal shall be advanced by the Master Servicer as a Servicing
Advance).
(f) The Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan that is not in default or as to which default is
not reasonably foreseeable if it consults with counsel (and if it is determined
by 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 by the Servicer as a Servicing
Advance)) to obtain advice regarding whether the contemplated waiver,
modification or amendment (i) will not be a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b),
(ii) will not cause (x) any REMIC Pool to fail to qualify as a REMIC for
purposes of the Code or (y) any REMIC Pool to be subject to any tax under the
REMIC Provisions.
(g) Notwithstanding anything in this Agreement to the contrary,
neither the Master Servicer nor the Special Servicer shall consent to, make or
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would cause an Adverse REMIC Event with respect to any REMIC Pool, an
Adverse Grantor Trust Event with respect to any Grantor Trust Pool or any event
similar to the foregoing with respect to any REMIC or grantor trust that
includes a B Note.
(h) In no event shall the Special Servicer (i) extend the Maturity
Date of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date; (ii) extend the Maturity Date of any Mortgage Loan at an
interest rate less than the lower of (A) the interest rate in effect prior to
such extension or (B) the then prevailing interest rate for comparable loans, as
determined by the Special Servicer by reference to available indices for
commercial mortgage lending; (iii) if the Mortgage Loan is secured by a ground
lease, extend the Maturity Date of such Mortgage Loan beyond a date which is 10
years prior to the expiration of the term of such Ground Lease (after giving
effect to all extension options); or (iv) defer interest due on any Mortgage
Loan in excess of 5% of the Stated Principal Balance of such Mortgage Loan;
provided that with respect to clause (iii) above, the Special Servicer gives due
215
consideration to the term of such Ground Lease prior to any extension beyond a
date 20 years prior to the expiration of the term of such Ground Lease (after
giving effect to all extension options).
(i) Neither the Master Servicer or the Special Servicer may agree
to any modification, waiver, amendment or consent of or relating to any term of
a cross-collateralized Mortgage Loan (including in connection with the transfer
of any Mortgaged Property) that would result in the uncrossing of any such
Mortgage Loan without obtaining a Nondisqualification Opinion or a ruling from
the Internal Revenue Service pursuant to Section 12.3.
(j) The Master Servicer and the Special Servicer may, as a
condition to granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within its discretion pursuant to the terms of the instruments evidencing or
securing the related Mortgage Loan and is permitted by the terms of this
Agreement, require that such Mortgagor pay to it (i) as additional servicing
compensation, a reasonable or customary fee for the additional services
performed in connection with such request (provided that such fee does not
constitute or cause a "significant modification" of such Mortgage Loan under
Treasury regulations section 1.860G-2(b)), and (ii) any related costs and
expenses incurred by it. In no event shall the Master Servicer or the Special
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(k) The Master Servicer and the Special Servicer shall, except
with respect to waivers of Penalty Charges, notify each other, the holder of
each affected B Note and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Mortgage Loan (including fees charged the
Mortgagor) agreed to by the Master Servicer or the Special Servicer, as the case
may be, and the date thereof, and shall deliver to the Trustee (in the case of
the Special Servicer, with a copy to the Master Servicer) for deposit in the
related Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. The Master Servicer or Special
Servicer, as applicable, shall notify the Rating Agencies of any modification,
waiver, except with respect to waivers of Penalty Charges, or amendment of any
term of any Significant Mortgage Loan agreed to by the Master Servicer or the
Special Servicer, as the case may be. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Mortgage Loan is effected
shall be made available for review upon prior request during normal business
hours at the offices of the Master Servicer or Special Servicer, as applicable,
pursuant to Section 8.15 or 9.7 hereof, as applicable.
With respect to each Mortgagor that has been established as a
"bankruptcy-remote entity," neither the Master Servicer nor the Special Servicer
shall consent to (x) the amendment by such Mortgagor of its organizational
documents in a manner that would violate any covenant of such Mortgagor relating
to its status as a separate of bankruptcy-remote entity or (y) any action that
would violate any covenant of such Mortgagor relating to its status as a
separate or bankruptcy-remote entity, unless granting such consent is consistent
with the Servicing Standard and, with respect to a Mortgagor under any
Significant Mortgage Loan, the Master Servicer or the Special Servicer, as
applicable, has obtained Rating Agency Confirmation that such amendment or
action would not result in a downgrade or withdrawal of any rating on a Class of
Certificates rated by such Rating Agency.
216
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Operating Adviser, the Rating Agencies, the Paying Agent, the
Trustee and solely as it relates to any A/B Mortgage Loan, to the holder of the
related B Note and solely as it relates to any Loan Pair, to the holder of the
related Serviced Companion Mortgage Loan, within two Business Days after
becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan,
which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and whether such Mortgage Loan is covered by an Environmental Insurance Policy
(and for purposes of stating whether such Mortgage Loan is covered by an
Environmental Insurance Policy the Master Servicer may rely on Schedule X
attached hereto) and, except for the Rating Agencies, the Paying Agent and the
Trustee, shall be accompanied by a copy of the Servicer Mortgage File. The
Special Servicer shall not be liable for its failure to deliver the notice set
forth in Section 9.36(a) if such failure is caused by its failure to receive the
written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify
the related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to
the extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer
shall provide to the Special Servicer, in order for the Special Servicer to
comply with its obligations under this Agreement, such information (and in the
form and medium) as the Special Servicer may reasonably request in writing from
time to time, provided that (i) the Master Servicer shall not be required to
produce any ad hoc reports or incur any unusual expense or effort in connection
therewith and (ii) if the Master Servicer elects to provide such ad hoc reports,
it may require the Special Servicer to pay a reasonable fee to cover the costs
of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the laws
of each State in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
217
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Paying Agent and the Special Servicer,
evidences the valid and binding obligation of the Master Servicer enforceable
against the Master Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Master Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Master Servicer by any of the
Trustee or the Master Servicer. The Master Servicer shall give prompt notice to
the Trustee, the Depositor, any Primary Servicer and the
218
Special Servicer of the occurrence, or the failure to occur, of any event that,
with notice or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that each of the Rating Agencies provides a
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing direct beneficial ownership interests in any Serviced
Companion Mortgage Loan or B Note). If such a transaction occurs and the
conditions to the provisions in the preceding sentence are not met, the Trustee
may terminate, and if such a transaction occurs and the conditions set forth in
the following paragraph are not met the Trustee shall terminate, the
successor's, survivor's or resulting entity's servicing of the Mortgage Loans
pursuant hereto, such termination to be effected in the manner set forth in
Sections 8.28 and 8.29.
Notwithstanding the foregoing, as long as (but only for so long as)
the Trust is subject to the reporting requirements of the Exchange Act, Master
Servicer may not remain the Master Servicer under this Agreement after (x) being
merged or consolidated with or into any Person that is a Prohibited Party, or
(y) transferring all or substantially all of its assets to any Person if such
Person is a Prohibited Party, unless (i) the Master Servicer is the surviving
entity of such merger, consolidation or transfer or (ii) the Depositor consents
to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld (and if, within 45 days following the date of delivery of
a notice by the Master Servicer to the Depositor of any merger or similar
transaction described in the prior paragraph, the Depositor shall have failed to
notify the Master Servicer of the Depositor's determination to grant or withhold
such consent, such failure shall be deemed to constitute a grant of such
consent).
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Master Servicer's duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by the Master Servicer to the Trustee. The Master Servicer shall bear
all out-of-pocket fees and costs associated with its resignation and the
transfer of servicing under this Section 8.22(a). Notwithstanding the foregoing,
if the Master Servicer shall cease to serve as such in accordance with this
Section 8.22(a) and a successor servicer shall not have been engaged, the
Trustee or an agent of the Trustee shall assume the duties and obligations of
the Master Servicer
219
under this Agreement. If the Trustee or an agent of the Trustee assumes the
duties and obligations of the Master Servicer pursuant to this Section 8.22(a),
the Trustee or such agent shall be permitted to resign as master servicer if it
has been replaced by a successor servicer satisfying the criteria in the fourth
preceding sentence above.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (w) is available, (x) has a net worth of at least
$15,000,000, (y) is willing to assume the obligations, responsibilities, and
covenants to be performed hereunder by the Master Servicer on substantially the
same terms and conditions, and for not more than equivalent compensation to that
herein provided and (z) assumes all obligations under the applicable Primary
Servicing Agreement; (ii) the Master Servicer bears all costs associated with
its resignation and the transfer of servicing; and (iii) Rating Agency
Confirmation is obtained with respect to such servicing transfer, as evidenced
by a letter delivered to the Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER. The Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer,
any Primary Servicer, the holder of the B Note (only if such
assignment/delegation relates to the related A/B Mortgage Loan), the holder of
the Serviced Companion Mortgage Loan (only if such assignment/delegation relates
to the related Loan Pair) and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer, with like effect as if originally named as a party to this
Agreement and the applicable Primary Servicing Agreement; (iii) the purchaser or
transferee has a net worth in excess of $15,000,000; (iv) such assignment and
delegation is the subject of a Rating Agency Confirmation; and (v) the Depositor
consents to such assignment and delegation, such consent not be unreasonably
withheld. In the case of any such assignment and delegation in accordance with
the requirements of subclause (B) of this Section, the Master Servicer shall be
released from its obligations under this Agreement, except that the Master
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Master Servicer hereunder prior to the satisfaction of the conditions to
such assignment set forth in the preceding sentence. Notwithstanding the above,
the Master Servicer may appoint a Primary Servicer and Sub-Servicers in
accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.
(a) Neither the Master Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicer shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters, the holder of any Serviced Companion Mortgage Loan, the
holder of any B Note or the Special Servicer for any action taken or for
refraining from the taking of any action in good faith, or using reasonable
business judgment,
220
consistent with the Servicing Standard; provided that this provision shall not
protect the Master Servicer or any such person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties under the Agreement or by reason of negligent
disregard of obligations and duties hereunder. The Master Servicer and any
partner, representative, Affiliate, member, manager, director, officer, employee
or agent of the Master Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person (including,
without limitation, the Special Servicer) respecting any matters arising
hereunder. The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties to
service the Mortgage Loans in accordance with this Agreement; provided that the
Master Servicer may in its sole discretion undertake any such action which it
may reasonably deem necessary or desirable in order to protect the interests of
the Certificateholders and the Trustee in the Mortgage Loans, the interests of
the holder of any B Note or the interests of the holder of any Serviced
Companion Mortgage Loan (subject to the Special Servicer's servicing of
Specially Serviced Mortgage Loans as contemplated herein), or shall undertake
any such action if instructed to do so by the Trustee. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any partner, representative, member, manager,
director, officer, employee, agent or Affiliate, shall be personally liable for
any error of judgment made in good faith by any officer, unless it shall be
proved that the Master Servicer or such officer was negligent in ascertaining
the pertinent facts. Neither the Master Servicer nor any partner,
representative, member, manager, director, officer, employee, agent or
Affiliate, shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent the Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
221
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or
agent of the Master Servicer shall be indemnified by the Trustee, the Paying
Agent and the Special Servicer, as the case may be, and held harmless against
any loss, liability or expense including reasonable attorneys' fees incurred in
connection with any legal action relating to the Trustee's, the Paying Agent's
or the Special Servicer's, as the case may be, respective willful misfeasance,
bad faith or negligence in the performance of its respective duties hereunder or
by reason of negligent disregard of its respective duties hereunder, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Master Servicer's duties
hereunder or by reason of negligent disregard of the Master Servicer's
obligations and duties hereunder. The Master Servicer shall immediately notify
the Trustee, the Paying Agent and the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling the
Master Servicer to indemnification hereunder, whereupon the Trustee, the Paying
Agent or the Special Servicer, in each case, to the extent the claim is related
to its respective willful misfeasance, bad faith or negligence, may assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee, the Paying Agent and the Special Servicer shall not affect any
rights that the Master Servicer may have to indemnification under this Agreement
or otherwise, unless the Trustee's, the Paying Agent's or the Special Servicer's
defense of such claim is materially prejudiced thereby. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent or the Special Servicer pursuant to this paragraph to the Master Servicer
shall be paid from the Trustee's, the Paying Agent's or Special Servicer's own
funds, without reimbursement from the Trust therefor except to the extent
achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee, the Paying Agent or
the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that (x) the conduct of the
Trustee, the Paying Agent or the Special Servicer, as the case may be, was not
culpable of willful misfeasance, bad faith or negligence in the performance of
its respective
222
duties hereunder or of negligent disregard of its respective duties hereunder or
(y) the indemnifying party is found to not have acted with willful misfeasance,
bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or
agent of the Master Servicer (the "Master Servicer Indemnified Parties") shall
be indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes, as provided in the following paragraph, against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses (collectively, "Master
Servicer Losses") incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B
Notes, any REO Property or the Certificates or any exercise of any right under
this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of the
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence and subject to Section
9.35, indemnification for Master Servicer Losses described in the preceding
paragraph (including in the case of such Master Servicer Losses that relate
primarily to the administration of the Trust, to any REMIC Pool or to any
determination respecting the amount, payment or avoidance of any tax under the
REMIC provisions of the Code or the actual payment of any REMIC tax or expense)
shall be paid out of collections on, and other proceeds of, the Mortgage Loans
as a whole but not out of collections on, or other proceeds of, any Serviced
Companion Mortgage Loan or any B Note. In the case of any such Master Servicer
Losses that do not relate primarily to the administration of the Trust, to any
REMIC Pool or to any determination respecting the amount, payment or avoidance
of any tax under the REMIC provisions of the Code or the actual payment of any
REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then
such indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable Loan
Pair Intercreditor Agreement and (y) if the collections and proceeds described
in subclause (x) of this clause (1) are not sufficient to so indemnify the
Master Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage
Loan, then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate
collections and proceeds described in subclauses (x) and (y) of this clause (2)
are not sufficient to so indemnify the Master Servicer Indemnified Parties on a
223
current basis, then the balance of such indemnification shall be paid out of
collections on, and other proceeds of, the Mortgage Loans as a whole.
Subject to Section 9.35, the Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim. The indemnification provided herein shall survive the termination of
this Agreement. The Trustee, the Paying Agent or the Master Servicer shall
promptly make from the Certificate Account (and, if and to the extent that the
amount due shall be paid from collections on, and other proceeds of, any
Serviced Companion Mortgage Loan or any B Note, as set forth above, out of the
related Serviced Companion Mortgage Loan Custodial Account or the related A/B
Loan Custodial Account) any payments certified by the Master Servicer to the
Trustee and the Paying Agent as required to be made to the Master Servicer
pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the
Special Servicer, the Trust, the Depositor, the Paying Agent, and any director,
officer, employee, agent or Controlling Person thereof, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent
and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of the Master
Servicer's duties hereunder or by reason of negligent disregard of the Master
Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation the
Master Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Special
Servicer, the Paying Agent or the Depositor, as applicable, shall immediately
notify the Master Servicer if a claim is made by any Person with respect to this
Agreement or the Mortgage Loans entitling the Trustee, the Depositor, the
Special Servicer, the Paying Agent or the Trust to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Special
Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer shall not
affect any rights the Trustee, the Special Servicer, the Depositor, the Paying
Agent or the Trust may have to indemnification under this Agreement or
otherwise, unless the Master Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee. Any expenses
incurred or indemnification payments made by the Master Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Master Servicer was not
culpable of willful misfeasance, bad faith or negligence in the performance of
its duties hereunder or of negligent disregard of its duties hereunder or that
the Master Servicer did not act with willful misfeasance, bad faith or
negligence.
224
(c) Any Primary Servicer and any director, officer, employee or
agent thereof shall be indemnified by the Trust and held harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, the applicable
Primary Servicing Agreement (but only if, and to the extent that, the Master
Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the Mortgage Loan), any Mortgage Loans,
any REO Property or the Certificates or any exercise of any right under this
Agreement or the applicable Primary Servicing Agreement (limited as set forth
above) reasonably requiring the use of counsel or the incurring of expenses
other than any loss, liability or expense incurred by reason of any Primary
Servicer willful misfeasance, bad faith or negligence in the performance of
duties thereunder. The applicable Primary Servicer shall assume the defense of
any such claim (with counsel reasonably satisfactory to the applicable Primary
Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim. The indemnification provided herein shall survive the termination of
this Agreement and the applicable Primary Servicing Agreement. The Trustee, the
Paying Agent or the Master Servicer shall promptly make from the Certificate
Account any payments certified by the applicable Primary Servicer to the Trustee
and the Paying Agent as required to be made to the applicable Primary Servicer
pursuant to this Section 8.25.
(d) Any Non-Serviced Mortgage Loan Master Servicer and any
director, officer, employee or agent of such Non-Serviced Mortgage Loan Master
Servicer shall be indemnified by the Trust and held harmless against the Trust's
pro rata share of any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to any
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement,
and relating to any Non-Serviced Mortgage Loan (but excluding any such losses
allocable to the related Non-Serviced Companion Mortgage Loans), reasonably
requiring the use of counsel or the incurring of expenses other than any losses
incurred by reason of any Non-Serviced Mortgage Loan Master Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(e) Any Primary Servicer agrees to indemnify the Trustee, the
Special Servicer, the Trust, the Depositor, the Paying Agent and any director,
officer, employee, agent or Controlling Person thereof, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent
and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of the applicable
Primary Servicer's duties under this Agreement, the applicable Primary Servicing
Agreement or by reason of negligent disregard of the applicable Primary
Servicer's obligations and duties thereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation the
applicable Primary Servicer is replaced, the parties hereto agree that the
amount of such claims, losses, penalties, fines, legal fees and related costs,
judgments, and other costs, liabilities, fees and expenses shall at least equal
the incremental costs, if any, of retaining a successor primary servicer. The
Trustee, the Special Servicer, the
225
Paying Agent or the Depositor, as applicable, shall immediately notify the
applicable Primary Servicer if a claim is made by any Person with respect to
this Agreement, the applicable Primary Servicing Agreement or the Mortgage Loans
entitling the Trustee, the Depositor, the Special Servicer, the Paying Agent or
the Trust to indemnification under this Section 8.25(d), whereupon the
applicable Primary Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Special Servicer, the Paying
Agent or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the applicable Primary Servicer shall not affect
any rights the Trustee, the Special Servicer, the Depositor, the Paying Agent or
the Trust may have to indemnification under this Agreement, the applicable
Primary Servicing Agreement or otherwise, unless the applicable Primary
Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the applicable Primary Servicing Agreement and the resignation or
termination of the Master Servicer, the Special Servicer, the Paying Agent and
the Trustee. Any expenses incurred or indemnification payments made by the
applicable Primary Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the applicable Primary Servicer was not culpable or that the
applicable Primary Servicer did not act with willful misfeasance, bad faith or
negligence.
SECTION 8.26 RESERVED.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS. The Master Servicer shall act in accordance with this Agreement
and the REMIC Provisions and related provisions of the Code in order to create
or maintain the status of any REMIC Pool as a REMIC and of any Grantor Trust
Pool as a grantor trust under the Code. The Master Servicer shall not (A) take
any action or cause any REMIC Pool to take any action that could (i) endanger
the status of any REMIC Pool as a REMIC under the Code or (ii) result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)); or (B) take any action or
cause any Grantor Trust Pool to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon any
Grantor Trust Pool unless the Trustee shall have received a Nondisqualification
Opinion (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such tax. The Master Servicer shall comply with the provisions of
Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of
the Master Servicer created hereby (other than the obligation of the Master
Servicer to make payments to the Paying Agent as set forth in Section 8.29 and
the obligations of the Master Servicer to the Trustee, the Paying Agent, the
Special Servicer and the Trust) shall terminate (i) on the date which is the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining outstanding (and final distribution to the Certificateholders) or (B)
the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default described in clauses
8.28(a)(iii), (iv), (v), (vi), (x) or (xi) has occurred, 60 days following the
date on which the Trustee or Depositor gives written notice to the Master
Servicer that the Master Servicer is terminated or (iii) if an Event of Default
described in clauses 8.28(a)(i), (ii), (vii), (viii), (ix) or (xii) has
occurred, immediately upon the date on which the Trustee or the
226
Depositor gives written notice to the Master Servicer that the Master Servicer
is terminated. After any Event of Default (but subject, in the case of Section
8.28(a)(xii), to the waiver right of the Depositor described therein), the
Trustee (i) may elect to terminate the Master Servicer by providing such notice,
and (ii) shall provide such notice if holders of Certificates representing more
than 25% of the Aggregate Certificate Balance of all Certificates so direct the
Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the
Paying Agent or otherwise make any payment required to be remitted by the Master
Servicer under the terms of this Agreement, including any required Advances; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement (other
than, for so long as the Trust is subject to the reporting requirements of the
Exchange Act, with respect to the duties, covenants or agreements set forth in
Article XIII of which the failure to perform may be an Event of Default in
accordance with Section 8.28(a)(xi)) which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer by the
Depositor or the Trustee; provided, however, that if the Master Servicer
certifies to the Trustee and the Depositor that the Master Servicer is in good
faith attempting to remedy such failure, such cure period will be extended to
the extent necessary to permit the Master Servicer to cure such failure;
provided, further that such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificates and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor or the Trustee, provided, however, that if the Master
Servicer certifies to the Trustee and the Depositor that the Master Servicer is
in good faith attempting to remedy such breach, such cure period will be
extended to the extent necessary to permit the Master Servicer to cure such
breach; provided, further that such cure period may not exceed 90 days; or
(v) the Master Servicer is removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer and is not
reinstated within 60 days; or
(vi) the Trustee shall receive notice from Fitch to the
effect that the continuation of the Master Servicer in such capacity would
result in the downgrade, qualification or withdrawal of any rating then assigned
by Fitch to any Class of Certificates; or
(vii) 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,
227
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(viii) the Master Servicer shall consent to the appointment of
a conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(ix) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(x) the Master Servicer has been downgraded to a servicer
rating level below "CMS3" (or its equivalent) by Fitch for a continuous period
of 60 days; or
(xi) subject to Section 13.8, the Master Servicer or any
Additional Servicer or Sub-Servicer appointed by such Master Servicer (other
than any Seller Sub-Servicer), shall fail to deliver any Exchange Act reporting
items required to be delivered by such servicer under Article XIII of this
Agreement at the times required under such Article; or
(xii) the Master Servicer shall fail to terminate any
Sub-Servicer that is a Reporting Servicer subject to and in accordance with
Section 8.4(c); provided that the Depositor may waive any such Event of Default
under this clause (xii) in its sole discretion without the consent of the
Trustee or any Certificateholders.
(b) Notwithstanding the foregoing, if the Event of Default of the
Master Servicer occurs primarily by reason of the occurrence of a "Primary
Servicing Default" (as hereinafter defined) (that is, it would not have occurred
but for (a) the occurrence of such Primary Servicing Default and (b) the Master
Servicer failure to cause the cure of such event) and the Trustee (or the
Trustee at the direction of the Certificateholders pursuant to Section 8.28
hereof) elects to terminate the Master Servicer, then Xxxxx Fargo Bank, National
Association shall have the right to elect that the successor Master Servicer,
upon its succession, enter into a primary servicing or sub-servicing agreement
with Xxxxx Fargo Bank, National Association with respect to all Mortgage Loans
as to which that Primary Servicing Default occurred, so long as the initial
Master Servicer is on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer and the initial Master Servicer has a commercial loan master
servicer rating of at least "CMS3" (or its equivalent) by Fitch or a commercial
loan primary servicer rating of at least "CPS3" (or its equivalent) by Fitch,
and such agreement shall be substantially in the form of Exhibit AA hereto (but
as if Xxxxx Fargo Bank, National Association were the Primary Servicer or
Sub-Servicer thereunder and with applicable servicing fees and excess fees as
specified on the Mortgage Loan Schedule). For purposes of the preceding
sentence, a "Primary Servicing Default" means an "event of default" of a primary
servicer or sub-servicer under a primary servicing or sub-servicing agreement.
228
(c) Notwithstanding the other provisions of this Section 8.28, (A)
if any Event of Default on the part of the Master Servicer occurs that affects a
Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Xxxxx'x, if the applicable Master Servicer receives actual knowledge
that Xxxxx'x has (i) qualified, downgraded or withdrawn its rating or ratings of
one or more Classes of Certificates, or (ii) placed one or more Classes of
Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn by
Xxxxx'x within 60 days of the date that such Master Servicer obtained such
actual knowledge) and, in the case of either of clauses (i) or (ii), citing
servicing concerns with the Master Servicer as the sole or material factor in
such rating action, and in either case, the Master Servicer is not otherwise
terminated in accordance with this Section 8.28, then, at the request of the
holder of such affected Serviced Companion Mortgage Loan, the Trustee shall
require the Master Servicer to appoint, within 30 days of the Trustee's request,
a Sub-Servicer (or, if the related Mortgage Loan is currently being
sub-serviced, to replace, within 30 days of the Trustee's request, the
then-current Sub-Servicer with a new Sub-Servicer) with respect to the related
Mortgage Loan only, but as to no other Mortgage Loan. In connection with the
Master Servicer's appointment of a Sub-Servicer at the request of the Trustee in
accordance with this Section 8.28(c), the Master Servicer shall obtain a Rating
Agency Confirmation (such Rating Agency Confirmation to be an expense of the
requesting Serviced Companion Mortgage Loan holder). The related Sub-Servicing
Agreement shall provide that any Sub-Servicer appointed by the Master Servicer
at the request of the Trustee in accordance with this Section 8.28(c) shall be
responsible for all duties, and shall be entitled to all compensation, of the
Master Servicer under this Agreement with respect to the subject Loan Pair.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon
which the final transfer by the Master Servicer to the Paying Agent shall be
made, shall be given promptly in writing by the Master Servicer to the Paying
Agent no later than the later of (i) five Business Days after the final payment
or other liquidation of the last Mortgage Loan or (ii) the sixth day of the
month of such final distribution. Upon any such termination, the duties of the
Master Servicer (other than the obligation of the Master Servicer to pay to the
Paying Agent the amounts remaining in the Certificate Account as set forth below
and the obligations of the Master Servicer to the Trustee and the Trust as
provided herein) shall terminate and the Master Servicer shall transfer to the
Paying Agent the amounts remaining in the Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the Certificate Account and any other
account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given
to the Master Servicer pursuant to clause (ii) of the first paragraph of Section
8.28, or on the date on which a written notice of termination is given to the
Master Servicer pursuant to clause (iii) of the first paragraph of Section 8.28
all authority, power and rights of the Master Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall terminate (except
for any rights relating to indemnification, unpaid servicing compensation or
unreimbursed Advances and related interest or, if the terminated Master Servicer
is Xxxxx Fargo Bank, National Association, its rights to the Excess Servicing
Fee); provided that in no event shall the
229
termination of the Master Servicer be effective until a successor servicer shall
have succeeded the Master Servicer as successor servicer, subject to approval by
the Rating Agencies, notified the Master Servicer of such designation and such
successor servicer shall have assumed the Master Servicer's obligations and
responsibilities hereunder and under the applicable Primary Servicing Agreement,
as set forth in an agreement substantially in the form hereof, with respect to
the Mortgage Loans and, in the circumstances set forth in the last sentence of
Section 8.28(b), entered into a new primary servicing agreement with the
predecessor Master Servicer in substantially the same form as Exhibit AA
attached hereto. Except as provided in the next sentence, the Trustee may not
succeed the Master Servicer as servicer until and unless it has satisfied the
provisions that would apply to a Person succeeding to the business of the Master
Servicer pursuant to Section 8.22(b) hereof. Notwithstanding the foregoing
sentence, in the event that the Master Servicer is terminated as a result of an
event described in Section 8.28(a)(vii), 8.28(a)(viii) or 8.28(a)(ix), the
Trustee shall act as successor servicer immediately upon delivery of a notice of
termination to the Master Servicer and shall use commercially reasonable efforts
within 90 days of assuming the duties of the Master Servicer, either to satisfy
the conditions of Section 8.22(b) hereof or to transfer the duties of the Master
Servicer to a successor servicer who has satisfied such conditions. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The Master Servicer agrees to cooperate with the
Trustee and the Paying Agent, in effecting the termination of the Master
Servicer's responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor servicer
designated by the Trustee to assume the Master Servicer's functions hereunder
and to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Certificate Account and any other account or fund maintained or
thereafter received with respect to the Mortgage Loans.
(c) If the Master Servicer receives a written notice of
termination pursuant to clause (ii) of the first paragraph of Section 8.28
relating solely to an Event of Default set forth in clause (v), (vi), (x) or
(xi) of Section 8.28(a), and if the Master Servicer provides the Trustee with
the appropriate "request for proposal" materials within five Business Days after
receipt of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Master
Servicer) solicit good faith bids for the rights to service the Mortgage Loans
under this Agreement from at least three but no more than five Qualified Bidders
or, if three Qualified Bidders cannot be located, then from as many persons as
the Trustee can determine are Qualified Bidders. At the Trustee's request, the
Master Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage Loans
under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the applicable
Primary Servicing Agreement, not later than 30 days after termination of the
Master Servicer hereunder. The Trustee shall select the Qualified Bidder
230
with the highest cash bid (or such other Qualified Bidder as the Master Servicer
may direct) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within 30 days after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such 30-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section 8.29,
the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the applicable Primary Servicing Agreement as a
condition precedent to its becoming Master Servicer hereunder.
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude those servicing rights
and duties as to which Xxxxx Fargo Bank, National Association has made an
election for the execution of a primary servicing agreement as contemplated by
Section 8.28(b).
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER AND
SPECIAL SERVICER. No less often than on a monthly basis or as agreed upon by the
Master Servicer and the Operating Adviser, each of the Master Servicer and the
Special Servicer shall, without charge, make a Servicing Officer available to
answer questions from the Operating Adviser 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. The
applicable Primary Servicer shall make a Servicing Officer available on any such
call to answer questions from the Operating Adviser regarding the Mortgage Loans
and/or REO Properties that it services.
SECTION 8.31 CLASS A-2FL SWAP CONTRACT.
(a) On the Closing Date, the Paying Agent, not in its individual
capacity but solely in its capacity as Paying Agent on behalf of the Trust, is
hereby directed by the Trust to execute and deliver the Class A-2FL Swap
Contract in the name of the Trust. Each of the representations, undertakings and
agreements in the Class A-2FL Swap Contract shall be made
231
on the part of the Trust and in no event shall be personal representations,
undertakings or agreements by the Paying Agent. Subject to Section 6.12, the
Paying Agent shall enforce the rights of the Trust specified in the Class A-2FL
Swap Contract, including the Credit Support Annex (as defined in the Class A-2FL
Swap Contract) and the Schedule to the related ISDA Master Agreement.
(b) No later than by noon (New York City time) on the second
Business Day prior to each Distribution Date, based on the reports provided by
the Master Servicer or on information that the Paying Agent obtains from the
Swap Counterparty pursuant to the Class A-2FL Swap Contract, and subject to the
priorities set forth in Article VI hereof, the Paying Agent shall provide to the
Swap Counterparty sufficient information to enable the Swap Counterparty to
calculate the Class A-2FL Net Swap Payment, if any, due to the Swap Counterparty
under the Class A-2FL Swap Contract, based upon the projected payment that will
be payable on the Class A-2FL Regular Interest pursuant to the priorities set
forth in Article VI hereof and the Pass-Through Rate of the Class A-2FL Regular
Interest and the Class A-2FL Certificates and the amount of any Prepayment
Premiums payable on the Class A-2FL Regular Interest. By the close of business
on the second Business Day prior to each Distribution Date, the Paying Agent
shall provide written notice (which notice may be delivered electronically) to
the Master Servicer of the Net Swap Payment, if any, required to be distributed
to the Swap Counterparty pursuant to the terms of the Class A-2FL Swap Contract
and will provide such notice even if no amounts are due to the Swap
Counterparty. The Master Servicer shall be deemed to have distributed the Net
Swap Payment specified by the Paying Agent in accordance with Section 5.3(c) and
this Section 8.31(b) as part of the Available Distribution Amount and the Paying
Agent shall be deemed to have transferred such A-2FL Net Swap Payment to the
Master Servicer's A-2FL Floating Rate Account. Accordingly, if the Master
Servicer receives the Paying Agent's notice by the close of business on the
second Business Day prior to the related Distribution Date, the Master Servicer
shall withhold an amount equal to the Class A-2FL Net Swap Payment from payments
made to the Paying Agent pursuant to Section 5.2(a)(xi) and shall pay such
amount to the Swap Counterparty in accordance with the wire instructions set
forth in the Paying Agent's notice, which shall conform to those in the Class
A-2FL Swap Contract.
(c) Reserved.
(d) Promptly upon receipt of any payment or other receipt in
respect of the Class A-2FL Regular Interest or the Class A-2FL Swap Contract,
the Paying Agent shall deposit the same into the Class A-2FL Floating Rate
Account.
(e) Reserved.
(f) If the Swap Counterparty is required to post collateral
pursuant to the Class A-2FL Swap Contract, the Paying Agent shall establish an
account, which shall be an Eligible Account (the "A-2FL Swap Counterparty
Collateral Account"). The Paying Agent shall deposit all collateral received
from the Swap Counterparty under any Credit Support Annex (as defined in the
Class A-2FL Swap Contract) of the Class A-2FL Swap Contract into the Class A-2FL
Swap Counterparty Collateral Account. The only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, the Class
A-2FL Swap Counterparty Collateral Account shall be (i) for application to
obligations of the Swap Counterparty under the Class A-2FL Swap Contract if such
Swap Contract becomes subject to early termination or upon
232
default by the Swap Counterparty or (ii) to return collateral to the relevant
Swap Counterparty when and as required by the Class A-2FL Swap Contract. The
Paying Agent agrees to give the Swap Counterparty prompt notice if it obtains
knowledge that the Class A-2FL Swap Counterparty Collateral Account or any funds
on deposit therein or otherwise to the credit of the Class A-2FL Swap
Counterparty Collateral Account, shall become subject to any writ, order,
judgment, warrant of attachment, execution or similar process. Funds credited to
the Class A-2FL Swap Counterparty Collateral Account shall be applied as
contemplated in the Class A-2FL Swap Contract. Subject to the terms of the Class
A-2FL Swap Contract, proceeds of liquidation of any Class A-2FL Swap Contract
collateral (if the Class A-2FL 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.
(g) The Paying Agent will have no obligation on behalf of the
Trust to pay to the Swap Counterparty any portion of the Fixed Interest
Distribution unless and until the interest payment on the Class A-2FL Regular
Interest is actually received by the Paying Agent; provided, however, that the
Paying Agent shall receive funds from the Swap Counterparty representing the net
amount payable to the Paying Agent pursuant to the Class A-2FL Swap Contract and
shall remit such amount to the holders of the Class A-2FL Certificates as part
of the Class A-2FL Interest Distribution Amount pursuant to Section 6.12. The
Master Servicer shall, at the direction of the Paying Agent, pay to the Swap
Counterparty the portion of interest and other amounts payable on the Class
A-2FL Regular Interest which is equal to the net swap payment due to the Swap
Counterparty pursuant to the Swap Contract (the "A-2FL Net Swap Payment").
(h) In connection with any amendment to the Class A-2FL Swap
Contract, the Paying Agent agrees that, subject to Section 6.12 and Section
14.3(g), it will follow written direction timely delivered to it from the
Depositor in respect of the terms of, or its execution on behalf of the Trust
of, any such amendments to the Class A-2FL Swap Contract and agrees to obtain a
Rating Agency Confirmation from each Rating Agency.
SECTION 8.32 CLASS A-MFL SWAP CONTRACT.
(a) On the Closing Date, the Paying Agent, not in its individual
capacity but solely in its capacity as Paying Agent on behalf of the Trust, is
hereby directed by the Trust to execute and deliver the Class A-MFL Swap
Contract in the name of the Trust. Each of the representations, undertakings and
agreements in the Class A-MFL Swap Contract shall be made on the part of the
Trust and in no event shall be personal representations, undertakings or
agreements by the Paying Agent. Subject to Section 6.12, the Paying Agent shall
enforce the rights of the Trust specified in the Class A-MFL Swap Contract,
including the Credit Support Annex (as defined in the Class A-MFL Swap Contract)
and the Schedule to the related ISDA Master Agreement.
(b) No later than by noon (New York City time) on the second
Business Day prior to each Distribution Date, based on the reports provided by
the Master Servicer or on information that the Paying Agent obtains from the
Swap Counterparty pursuant to the Class A-MFL Swap Contract, and subject to the
priorities set forth in Article VI hereof, the Paying Agent shall provide to the
Swap Counterparty sufficient information to enable the Swap Counterparty to
calculate the Class A-MFL Net Swap Payment, if any, due to the Swap Counterparty
under the Class A-MFL Swap Contract, based upon the projected payment that will
be payable on the
233
Class A-MFL Regular Interest pursuant to the priorities set forth in Article VI
hereof and the Pass-Through Rate of the Class A-MFL Regular Interest and the
Class A-MFL Certificates and the amount of any Prepayment Premiums payable on
the Class A-MFL Regular Interest. By the close of business on the second
Business Day prior to each Distribution Date, the Paying Agent shall provide
written notice (which notice may be delivered electronically) to the Master
Servicer of the Net Swap Payment, if any, required to be distributed to the Swap
Counterparty pursuant to the terms of the Class A-MFL Swap Contract and will
provide such notice even if no amounts are due to the Swap Counterparty. The
Master Servicer shall be deemed to have distributed the Net Swap Payment
specified by the Paying Agent in accordance with Section 5.3(c) and this Section
8.32(b) as part of the Available Distribution Amount and the Paying Agent shall
be deemed to have transferred such A-MFL Net Swap Payment to the Master
Servicer's A-MFL Floating Rate Account. Accordingly, if the Master Servicer
receives the Paying Agent's notice by the close of business on the second
Business Day prior to the related Distribution Date, the Master Servicer shall
withhold an amount equal to the Class A-MFL Net Swap Payment from payments made
to the Paying Agent pursuant to Section 5.2(a)(xi) and shall pay such amount to
the Swap Counterparty in accordance with the wire instructions set forth in the
Paying Agent's notice, which shall conform to those in the Class A-MFL Swap
Contract.
(c) Reserved.
(d) Promptly upon receipt of any payment or other receipt in
respect of the Class A-MFL Regular Interest or the Class A-MFL Swap Contract,
the Paying Agent shall deposit the same into the Class A-MFL Floating Rate
Account.
(e) Reserved.
(f) If the Swap Counterparty is required to post collateral
pursuant to the Class A-MFL Swap Contract, the Paying Agent shall establish an
account, which shall be an Eligible Account (the "A-MFL Swap Counterparty
Collateral Account"). The Paying Agent shall deposit all collateral received
from the Swap Counterparty under any Credit Support Annex (as defined in the
Class A-MFL Swap Contract) of the Class A-MFL Swap Contract into the Class A-MFL
Swap Counterparty Collateral Account. The only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, the Class
A-MFL Swap Counterparty Collateral Account shall be (i) for application to
obligations of the Swap Counterparty under the Class A-MFL 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 relevant Swap Counterparty when
and as required by the Class A-MFL Swap Contract. The Paying Agent agrees to
give the Swap Counterparty prompt notice if it obtains knowledge that the Class
A-MFL Swap Counterparty Collateral Account or any funds on deposit therein or
otherwise to the credit of the Class A-MFL Swap Counterparty Collateral Account,
shall become subject to any writ, order, judgment, warrant of attachment,
execution or similar process. Funds credited to the Class A-MFL Swap
Counterparty Collateral Account shall be applied as contemplated in the Class
A-MFL Swap Contract. Subject to the terms of the Class A-MFL Swap Contract,
proceeds of liquidation of any Class A-MFL Swap Contract collateral (if the
Class A-MFL 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.
234
(g) The Paying Agent will have no obligation on behalf of the
Trust to pay to the Swap Counterparty any portion of the Fixed Interest
Distribution unless and until the interest payment on the Class A-MFL Regular
Interest is actually received by the Paying Agent; provided, however, that the
Paying Agent shall receive funds from the Swap Counterparty representing the net
amount payable to the Paying Agent pursuant to the Class A-MFL Swap Contract and
shall remit such amount to the holders of the Class A-MFL Certificates as part
of the Class A-MFL Interest Distribution Amount pursuant to Section 6.12. The
Master Servicer shall, at the direction of the Paying Agent, pay to the Swap
Counterparty the portion of interest and other amounts payable on the Class
A-MFL Regular Interest which is equal to the net swap payment due to the Swap
Counterparty pursuant to the Swap Contract (the "A-MFL Net Swap Payment").
(h) In connection with any amendment to the Class A-MFL Swap
Contract, the Paying Agent agrees that, subject to Section 6.12 and Section
14.3(g), it will follow written direction timely delivered to it from the
Depositor in respect of the terms of, or its execution on behalf of the Trust
of, any such amendments to the Class A-MFL Swap Contract and agrees to obtain a
Rating Agency Confirmation from each Rating Agency.
SECTION 8.33 CLASS A-JFL SWAP CONTRACT
(a) On the Closing Date, the Paying Agent, not in its individual
capacity but solely in its capacity as Paying Agent on behalf of the Trust, is
hereby directed by the Trust to execute and deliver the Class A-JFL Swap
Contract in the name of the Trust. Each of the representations, undertakings and
agreements in the Class A-JFL Swap Contract shall be made on the part of the
Trust and in no event shall be personal representations, undertakings or
agreements by the Paying Agent. Subject to Section 6.12, the Paying Agent shall
enforce the rights of the Trust specified in the Class A-JFL Swap Contract,
including the Credit Support Annex (as defined in the Class A-JFL Swap Contract)
and the Schedule to the related ISDA Master Agreement.
(b) No later than by noon (New York City time) on the second
Business Day prior to each Distribution Date, based on the reports provided by
the Master Servicer or on information that the Paying Agent obtains from the
Swap Counterparty pursuant to the Class A-JFL Swap Contract, and subject to the
priorities set forth in Article VI hereof, the Paying Agent shall provide to the
Swap Counterparty sufficient information to enable the Swap Counterparty to
calculate the Class A-JFL Net Swap Payment, if any, due to the Swap Counterparty
under the Class A-JFL Swap Contract, based upon the projected payment that will
be payable on the Class A-JFL Regular Interest pursuant to the priorities set
forth in Article VI hereof and the Pass-Through Rate of the Class A-JFL Regular
Interest and the Class A-JFL Certificates and the amount of any Prepayment
Premiums payable on the Class A-JFL Regular Interest. By the close of business
on the second Business Day prior to each Distribution Date, the Paying Agent
shall provide written notice (which notice may be delivered electronically) to
the Master Servicer of the Net Swap Payment, if any, required to be distributed
to the Swap Counterparty pursuant to the terms of the Class A-JFL Swap Contract
and will provide such notice even if no amounts are due to the Swap
Counterparty. The Master Servicer shall be deemed to have distributed the Net
Swap Payment specified by the Paying Agent in accordance with Section 5.3(c) and
this Section 8.33(b) as part of the Available Distribution Amount and the Paying
Agent shall be deemed to have transferred such A-JFL Net Swap Payment to the
Master Servicer's A-JFL Floating Rate
235
Account. Accordingly, if the Master Servicer receives the Paying Agent's notice
by the close of business on the second Business Day prior to the related
Distribution Date, the Master Servicer shall withhold an amount equal to the
Class A-JFL Net Swap Payment from payments made to the Paying Agent pursuant to
Section 5.2(a)(xi) and shall pay such amount to the Swap Counterparty in
accordance with the wire instructions set forth in the Paying Agent's notice,
which shall conform to those in the Class A-JFL Swap Contract.
(c) Reserved.
(d) Promptly upon receipt of any payment or other receipt in
respect of the Class A-JFL Regular Interest or the Class A-JFL Swap Contract,
the Paying Agent shall deposit the same into the Class A-JFL Floating Rate
Account.
(e) Reserved.
(f) If the Swap Counterparty is required to post collateral
pursuant to the Class A-JFL Swap Contract, the Paying Agent shall establish an
account, which shall be an Eligible Account (the "A-JFL Swap Counterparty
Collateral Account"). The Paying Agent shall deposit all collateral received
from the Swap Counterparty under any Credit Support Annex (as defined in the
Class A-JFL Swap Contract) of the Class A-JFL Swap Contract into the Class A-JFL
Swap Counterparty Collateral Account. The only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, the Class
A-JFL Swap Counterparty Collateral Account shall be (i) for application to
obligations of the Swap Counterparty under the Class A-JFL 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 relevant Swap Counterparty when
and as required by the Class A-JFL Swap Contract. The Paying Agent agrees to
give the Swap Counterparty prompt notice if it obtains knowledge that the Class
A-JFL Swap Counterparty Collateral Account or any funds on deposit therein or
otherwise to the credit of the Class A-JFL Swap Counterparty Collateral Account,
shall become subject to any writ, order, judgment, warrant of attachment,
execution or similar process. Funds credited to the Class A-JFL Swap
Counterparty Collateral Account shall be applied as contemplated in the Class
A-JFL Swap Contract. Subject to the terms of the Class A-JFL Swap Contract,
proceeds of liquidation of any Class A-JFL Swap Contract collateral (if the
Class A-JFL 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.
(g) The Paying Agent will have no obligation on behalf of the
Trust to pay to the Swap Counterparty any portion of the Fixed Interest
Distribution unless and until the interest payment on the Class A-JFL Regular
Interest is actually received by the Paying Agent; provided, however, that the
Paying Agent shall receive funds from the Swap Counterparty representing the net
amount payable to the Paying Agent pursuant to the Class A-JFL Swap Contract and
shall remit such amount to the holders of the Class A-JFL Certificates as part
of the Class A-JFL Interest Distribution Amount pursuant to Section 6.12. The
Master Servicer shall, at the direction of the Paying Agent, pay to the Swap
Counterparty the portion of interest and other amounts payable on the Class
A-JFL Regular Interest which is equal to the net swap payment due to the Swap
Counterparty pursuant to the Swap Contract (the "A-JFL Net Swap Payment").
236
(h) In connection with any amendment to the Class A-JFL Swap
Contract, the Paying Agent agrees that, subject to Section 6.12 and Section
14.3(g), it will follow written direction timely delivered to it from the
Depositor in respect of the terms of, or its execution on behalf of the Trust
of, any such amendments to the Class A-JFL Swap Contract and agrees to obtain a
Rating Agency Confirmation from each Rating Agency.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE L
OANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER
.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan taking
into consideration the subordinate nature of the B Note, the Special Servicer
shall service the Specially Serviced Mortgage Loans and manage the related REO
Properties in accordance with the Servicing Standard and the terms of this
Agreement. Certain of the provisions of this Article IX make explicit reference
to their applicability to Mortgage Loans, any Serviced Companion Mortgage Loan
and any B Note; notwithstanding such explicit references, references in this
Article IX to "Mortgage Loans" shall be construed, unless otherwise specified,
to refer also to such B Note and such Serviced Companion Mortgage Loan (but any
other terms that are defined in Article I and used in this Article IX shall be
construed according to such definitions without regard to this sentence).
(b) The Special Servicer shall cooperate with the Master Servicer
and provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer, the Operating Adviser and the Paying Agent within two Business Days
after becoming aware that a Mortgage Loan has become a Rehabilitated Mortgage
Loan, which notice shall identify the applicable Mortgage Loan. Upon the receipt
of such notice by the Master Servicer and the Paying Agent, such Mortgage Loan
shall become a Rehabilitated Mortgage Loan and will be serviced by the Master
Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer
237
shall xxxx its records for such Mortgage Loan to cause any monthly statements
for amounts due on such Mortgage Loan to be sent thereafter to the Special
Servicer rather than the related Mortgagor. Upon receipt of any such monthly
statement, the Special Servicer shall, within two Business Days, advise the
Master Servicer of any changes to be made, and return the monthly statement to
the Master Servicer. The Master Servicer shall thereafter promptly send the
corrected monthly statement to the Mortgagor. If a Mortgage Loan becomes a
Rehabilitated Mortgage Loan, the Master Servicer shall send the monthly
statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a B Note or
Serviced Companion Mortgage Loan) shall be deposited in the Certificate Account,
and all amounts collected by the Master Servicer with respect to a Specially
Serviced Mortgage Loan that is a B Note shall be deposited in the related A/B
Loan Custodial Account and all amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan that is a Serviced Companion
Mortgage Loan shall be deposited in the related Serviced Companion Mortgage Loan
Custodial Account. The Master Servicer shall within three Business Days after
receipt of any such payment, notify the Special Servicer of the receipt of such
payment and the amount thereof. The Special Servicer shall, within one Business
Day thereafter, instruct the Master Servicer in writing how to apply such
payment (with the application of such payments to be made in accordance with the
related Mortgage Loan documents (including the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, if any) or in accordance with this
Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with
respect to one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the Special Servicer shall monitor the dates by which any
claim must be made or action must be taken under such Environmental Insurance
Policy to achieve the payment of all amounts thereunder to which the Trust is
entitled in the event the Special Servicer has actual knowledge of any event
giving rise to a claim under such Environmental Insurance Policy (an "Insured
Environmental Event") and (ii) if the Special Servicer has actual knowledge of
an Insured Environmental Event with respect to such Mortgage Loan, the Special
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of the related Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Master Servicer (or if
applicable, the Special Servicer) as a Servicing Advance. All extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred by the
Special Servicer in fulfilling its obligations under this Section 9.1 shall be
paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER . The Special Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Special Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Special Servicer shall
238
obtain a comparable replacement policy or bond from an insurer or issuer meeting
the requirements set forth above as of the date of such replacement. So long as
the long-term rating of the Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "A" as rated by Fitch and "A" as
rated by S&P, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set forth
in Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer, Trustee and solely as it relates to any A/B
Mortgage Loan, the holder of the related B Note, and solely as it relates to any
Loan Pair, the holder of the related Serviced Companion Mortgage Loan, of the
appointment of any Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement
(and, in the case of any Non-Serviced Mortgage Loan, subject to the servicing of
such Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan
Master Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer),
the Special Servicer is hereby authorized and empowered when the Special
Servicer believes it appropriate in accordance with the Servicing Standard, to
take any and all the actions with respect to Specially Serviced Mortgage Loans
which the Master Servicer may perform as set forth in Section 8.3(a), including
(i) to execute and deliver, on behalf of itself or the Trust (or holder of a B
Note or Serviced Companion Mortgage Loan, as applicable), any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Specially
Serviced Mortgage Loans and with respect to the related REO Properties and (ii)
to effectuate foreclosure or other conversion of the ownership of any REO
Property securing a Mortgage Loan. The Trustee shall execute on the Closing Date
a Power of Attorney in the form of Exhibit S-2 hereto and shall furnish the
Special Servicer from time to time, upon request, with any additional powers of
attorney of the Trust, empowering the Special Servicer to take such actions as
it determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business Days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action
239
is to be taken either prohibit such action if taken in the name of the Trust or
that the Trust would be adversely affected under the "doing business" or tax
laws of such state if such action is taken in its name; provided, further, that
the Special Servicer shall not be liable to the extent that it relies on the
advice provided in such Opinion of Counsel. Upon receipt of any such advice from
the Trustee, the Special Servicer shall take such action in the name of such
Person or Persons, in trust for the Trust (or holder of a B Note or Serviced
Companion Mortgage Loan, if applicable), as shall be consistent with the Opinion
of Counsel obtained by the Trustee. Such Person or Persons shall acknowledge in
writing that such action is being taken by the Special Servicer in the name of
the Trust (or holder of a B Note or the Serviced Companion Mortgage Loan, if
applicable). In the performance of its duties hereunder, the Special Servicer
shall be an independent contractor and shall not, except in those instances
where it is, after notice to the Trustee as provided above, taking action in the
name of the Trust (or holder of a B Note or the Serviced Companion Mortgage
Loan, if applicable), be deemed to be the agent of the Trust (or holder of a B
Note or the Serviced Companion Mortgage Loan, as applicable). The Special
Servicer shall indemnify the Trustee for any loss, liability or reasonable
expense (including attorneys' fees) incurred by the Trustee or any director,
officer, employee, agent or Controlling Person of it or its affiliates in
connection with any negligent or intentional misuse of the foregoing powers of
attorney furnished to the Special Servicer by the Trustee. Such indemnification
shall survive the resignation or termination of the Special Servicer hereunder,
the resignation or termination of the Trustee and the termination of this
Agreement. The Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the Master Servicer or the Depositor
that is not attributable to the failure of the Special Servicer to perform its
obligations hereunder. The Special Servicer may conclusively rely on any advice
of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, at the Trust's expense, inspections of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2007); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that is
delinquent for sixty (60) days in the payment of any amounts due under such
Mortgage Loan. The Special Servicer shall provide to the Master Servicer (who
shall provide, solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note, and solely as it relates to any Loan Pair, to the holder of
the related Serviced Companion Mortgage Loan) and the Operating Adviser copies
of the Inspection Reports relating to such inspections as soon as practicable
after the completion of any inspection.
(c) Pursuant to the related Loan Pair Intercreditor Agreement,
each owner of a Serviced Companion Mortgage Loan has agreed that the Master
Servicer and the Special Servicer are authorized and obligated to service and
administer such Serviced Companion Mortgage Loan pursuant to this Agreement.
240
(d) Pursuant to the related Loan Pair Intercreditor Agreement,
each owner of a Serviced Companion Mortgage Loan has agreed that the Master
Servicer and the Special Servicer are authorized and obligated to service and
administer such Serviced Companion Mortgage Loan pursuant to this Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Special Servicer's obligations and responsibilities hereunder
and the Special Servicer's authority with respect to a Serviced Pari Passu
Mortgage Loan are limited by and subject to the terms of the related Loan Pair
Intercreditor Agreement. At such time when the related Serviced Companion
Mortgage Loan is deposited into a different commercial mortgage securitization
(the "Other Securitization"), the Special Servicer shall be required to consult
with the special servicer of the Other Securitization (the "Other Special
Servicer") in respect thereof, and shall provide the Other Special Servicer with
an opportunity to review any proposed action to be taken in respect thereof. The
Other Special Servicer and the operating adviser of the Other Securitization
(the "Other Operating Adviser") shall have such opportunity to consult with the
Special Servicer for a period from the date of receipt of the Special Servicer's
written description of its proposed action through (but excluding) the fifth
Business Day following the date of receipt (the "Initial Review Period"). The
Special Servicer shall implement its written proposal if the Other Special
Servicer (in consultation with the Other Operating Adviser) does not disapprove
the proposed action within the Initial Review Period, unless the Special
Servicer has been directed to do otherwise by the Operating Adviser (in which
event the Special Servicer shall advise the Other Special Servicer of such
alternate course of action). If the Other Special Servicer (in consultation with
the Other Operating Adviser) disagrees with any aspect of the written proposal
and, after consulting with the Special Servicer during the Initial Review
Period, is unable to reach agreement on the proper course of action and notifies
the Special Servicer of its disagreement in writing, then the Other Special
Servicer shall be entitled to an additional period of five Business Days (the
"Additional Review Period") to continue its discussions with the Special
Servicer and the Operating Adviser. If the Other Special Servicer and the
Special Servicer agree on a revised course of action within the Initial Review
Period or the Additional Review Period, then the Special Servicer shall revise
the written proposal to reflect the agreed upon revised course of action and
shall implement that course of action. If the Other Special Servicer and the
Special Servicer are unable to agree on the appropriate course of action by the
end of the Additional Review Period, then the Special Servicer shall decide,
without direction from or consent of or further consultation with such Other
Special Servicer, but in accordance with the Servicing Standard set forth in
this Agreement, what course of action to follow. If an Event of Default has
occurred and is continuing with respect to the Special Servicer under this
Agreement, which Event of Default does not relate to any Mortgage Loan other
than the related Loan Pair, then the trustee under the pooling and servicing
agreement relating to the Other Securitization (the "Other Pooling and Servicing
Agreement") shall be entitled to direct the Trustee to (a) terminate the
defaulting Special Servicer solely with respect to the related Loan Pair and (b)
appoint a successor Special Servicer that meets the eligibility requirements of
the Other Pooling and Servicing Agreement and this Agreement. In such event, the
trustee under the Other Pooling and Servicing Agreement shall exercise its
rights set forth in the preceding sentence at the direction of the
certificateholders holding at least 25% of the certificate balance of the
certificates issued under the Other Securitization or the Other Operating
Adviser. The replacement of the Special Servicer with respect to a Loan Pair, as
contemplated above, will in any event be subject to obtaining Rating Agency
Confirmation hereunder and any required Rating Agency Confirmation with respect
to the certificates by the trustee under the Other Pooling and Servicing
Agreement.
241
(e) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to
service and administer such Non-Serviced Mortgage Loan pursuant to the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the Special Servicer's obligations and responsibilities hereunder and the
Special Servicer's authority with respect to any Non-Serviced Mortgage Loan are
limited by and subject to the terms of the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage
Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special
Servicer with respect thereto under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement. The Special Servicer shall take such actions as
it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced Mortgage Loan Master
Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.5 RESERVED.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Specially Serviced Mortgage Loan, the Special
Servicer will within two (2) Business Days notify the Master Servicer. The
Special Servicer shall determine, in accordance with the Servicing Standard,
whether an instrument of satisfaction shall be delivered and, if the Special
Servicer determines that such instrument should be delivered, the Special
Servicer shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) Reserved.
242
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under such
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Special Servicer as from time to time are required by the terms hereof to be
delivered to the Trustee. Any funds received by the Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the Special Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage
Loan or any REO Property shall be transmitted to the Master Servicer within two
(2) Business Days of receipt to the Certificate Account, except that if such
amounts relate to REO Income, they shall be deposited in the REO Account. The
Special Servicer shall provide access to information and documentation regarding
the Specially Serviced Mortgage Loans to the Trustee, the Master Servicer, the
Paying Agent, the Operating Adviser and their respective agents and accountants
at any time upon reasonable written request and during normal business hours,
provided that the Special Servicer shall not be required to take any action or
provide any information that the Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement hereunder
or will result in any material liability for which it is not indemnified
hereunder; provided further that the Trustee and the Paying Agent shall be
entitled to receive from the Special Servicer all such information as the
Trustee and the Paying Agent shall reasonably require to perform their
respective duties hereunder. In fulfilling such a request, the Special Servicer
shall not be responsible for determining whether such information is sufficient
for the Trustee's, the Master Servicer's, the Paying Agent's or the Operating
Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust
(and/or the holder of the related B Note, if an A/B Mortgage Loan is involved
and/or the holder of the related Serviced Companion Mortgage Loan, if a Loan
Pair is involved) owns the Specially Serviced Mortgage Loans and all Mortgage
Files representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which the Special Servicer is entitled hereunder); and the Special
Servicer agrees that all documents or instruments constituting part of the
Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans
which come into the possession or custody of, or which are subject to the
control of, the Special Servicer, shall be held by the Special Servicer for and
on behalf of the Trust (or the holder of the related B Note, if an A/B Mortgage
Loan is involved or the holder of the related Serviced Companion Mortgage Loan,
if a Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other
243
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Specially Serviced Mortgage Loan or any funds, collected on,
or in connection with, a Specially Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the State of
Florida, and shall be in compliance with the laws of each State in which any
Mortgaged Property (including any REO Property) which is, or is related to a
Specially Serviced Mortgage Loan is located to the extent necessary to perform
its obligations under this Agreement, except where the failure to so qualify or
comply would not adversely affect the Special Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance by it of this
Agreement and this Agreement has been duly executed and delivered by the Special
Servicer; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, the Paying Agent and the Master
Servicer, evidences the valid and binding obligation of the Special Servicer
enforceable against the Special Servicer in accordance with its terms subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement by the
Special Servicer, the consummation by the Special Servicer of the transactions
contemplated hereby, and the fulfillment of or compliance by the Special
Servicer with the terms and conditions of this Agreement will not (1) result in
a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against it, the outcome of which, in the
Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof; and
244
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising out
of the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Special Servicer by any of the
Trustee, the Master Servicer or the Paying Agent. The Special Servicer shall
give prompt notice to the Trustee, the Paying Agent, the Depositor, the
Operating Adviser and the Master Servicer of the occurrence, or the failure to
occur, of any event that, with notice, or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Properties (other than REO Properties relating to
Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to maintain with a Qualified Insurer (A)
a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage
Loan documents and the related Mortgage so require, contains no exclusion as to
any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of
2002) which does not provide for reduction due to depreciation in an amount
which is not less than the full replacement cost of the improvements of such REO
Property or in an amount not less than the unpaid Principal Balance plus all
unpaid interest and the cumulative amount of Servicing Advances (plus Advance
Interest) made with respect to such Mortgage Loan, any related B Note and
Serviced Companion Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (B)
any other insurance coverage for such REO Property which the related Mortgagor
was required to maintain for the related Mortgaged Property under the related
Mortgage, subject, as to earthquake insurance, to the second sentence following
this sentence. If the improvements to the Mortgaged Property are in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and flood insurance has been made available), the
Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law or, with respect to insurance other than earthquake
insurance, as set forth in clause (B) of the first sentence of this Section
9.9(a) and, nevertheless, at its sole option and at the Trust's expense, it (if
required at origination and is available at commercially
245
reasonable rates) may obtain such earthquake insurance. The Special Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
obtain a comprehensive general liability insurance policy for all REO
Properties. The Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by the Special Servicer in accordance with the
Servicing Standard) and to the extent consistent with the Servicing Standard,
use its reasonable efforts to maintain a Rent Loss Policy covering revenues for
a period of at least twelve months and a comprehensive general liability policy
with coverage comparable to prudent lending requirements in an amount not less
than $1 million per occurrence. All applicable policies required to be
maintained by the Special Servicer pursuant to this Section 9.9(a) shall name
the Trustee as loss payee and be endorsed with a standard mortgagee clause. The
costs of such insurance shall be a Servicing Advance, subject to the provisions
of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard; provided that, the Special Servicer will be required to
maintain insurance against property damages resulting from terrorism or similar
acts if the terms of the related Mortgage Loan documents so require unless the
Special Servicer determines that (i) such insurance is not available at any rate
or (ii) such insurance is not available at commercially reasonable rates and
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. The Special Servicer shall notify
the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
REO Property serviced by it, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer with a minimum claims paying ability rating of at least "A" by Fitch and
at least "A" by S&P or otherwise approved by the Rating Agencies or (ii) if the
Special Servicer, provided that the rating of such Person's long-term debt is
not less than "A" by Fitch and "A" by S&P, self-insures for its obligations as
set forth in the first paragraph of this Section 9.9. In the event that the
Special Servicer shall cause any REO Property to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any REO Property is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer, at its option, or by the Master Servicer, as a Servicing Advance,
subject to the provisions of Section 4.4 hereof. If such policy contains a
deductible clause, the Special Servicer shall, if there shall not have been
maintained on the related REO Property a policy complying with this Section 9.9
and there shall have been a loss that would have been covered by such policy,
deposit in the Certificate Account
246
the amount not otherwise payable under such master force placed or blanket
insurance policy because of such deductible clause to the extent that such
deductible exceeds (i) the deductible under the related Mortgage Loan, A/B
Mortgage Loan or Serviced Companion Mortgage Loan or (ii) if there is no
deductible limitation required under the Mortgage Loan, A/B Mortgage Loan or
Serviced Companion Mortgage Loan, the deductible amount with respect to
insurance policies generally available on properties similar to the related REO
Property which is consistent with the Servicing Standard, and deliver to the
Trustee an Officer's Certificate describing the calculation of such amount. In
connection with its activities as administrator and servicer of the REO
Properties, the Special Servicer agrees to present, on its behalf and on behalf
of the Trustee, claims under any such master force placed or blanket insurance
policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. The Special Servicer shall be
entitled to receive a Liquidation Fee from the Liquidation Proceeds received in
connection with a Specially Serviced Mortgage Loan or REO Property. With respect
to each REO Mortgage Loan that is a successor to a Mortgage Loan secured by two
or more Mortgaged Properties, the reference to "REO Property" in the preceding
sentence shall be construed on a property-by-property basis to refer separately
to the acquired real property that is a successor to each of such Mortgaged
Properties, thereby entitling the Special Servicer to a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of, and
Condemnation Proceeds or Insurance Proceeds received in connection with, each
such acquired property as the Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds related to that property are received. The Special Servicer
shall also be entitled to additional special servicing compensation of an amount
equal to the excess, if any, of the aggregate Prepayment Interest Excess
relating to Mortgage Loans which are Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments not from Liquidation Proceeds or
from modifications of Specially Serviced Mortgage Loans for each Distribution
Date over the aggregate Prepayment Interest Shortfalls for such Mortgage Loans
for such Distribution Date. If the Special Servicer resigns or is terminated for
any reason, it shall retain the right to receive any Work-Out Fees payable on
Mortgage Loans that became Rehabilitated Mortgage Loans while it acted as
Special Servicer and remained Rehabilitated Mortgage Loans at the time of such
resignation or termination for so long as such Mortgage Loan remains a
Rehabilitated Mortgage Loan.
247
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw (i) from the Certificate Account, the Special Servicer
Compensation in respect of each Mortgage Loan (but not a B Note), (ii) from any
Serviced Companion Mortgage Loan Custodial Account, the Special Servicer
Compensation to the extent related solely to the related Serviced Companion
Mortgage Loan and (iii) from any A/B Loan Custodial Account, the Special
Servicer Compensation to the extent related solely to the related B Note, in the
time and manner set forth in Section 5.2 of this Agreement. The Special Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest payable at a rate above the Mortgage Rate (net of amounts used to pay
Advance Interest and Additional Trust Expenses (other than Special Servicing
Fees, Liquidation Fees and Workout Fees) relating to the subject Mortgage Loans
as provided in Section 4.5) or other usual and customary charges and fees
actually received from the Mortgagor in connection with any Specially Serviced
Mortgage Loan shall be retained by the Special Servicer, to the extent not
required to be deposited in the Certificate Account pursuant to the terms of
this Agreement. The Special Servicer shall also be permitted to receive such
compensation as set forth in Section 5.2(a)(ii), to the extent provided for
herein from funds paid by the applicable Mortgagor. To the extent any component
of Special Servicer Compensation is in respect of amounts usually and
customarily paid by Mortgagors, the Special Servicer shall use reasonable good
faith efforts to collect such amounts from the related Mortgagor, and to the
extent so collected, in full or in part, the Special Servicer shall not be
entitled to compensation for the portion so collected therefor hereunder out of
the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing
Standard and subject to Section 9.4(a) and Section 9.36, shall use its
reasonable efforts to foreclose upon, repossess or otherwise comparably convert
the ownership of Mortgaged Properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments of
such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of ownership,
the Special Servicer shall follow the Servicing Standard. The foregoing is
subject to the proviso that the Special Servicer shall not request that the
Master Servicer make a Servicing Advance for Liquidation Expenses that would be
a Nonrecoverable Advance unless the Special Servicer determines that such
Servicing Advance is in the best interest of the Certificateholders (and in the
case of any A/B Mortgage Loan, the holder of the related B Note and the Trust as
a collective whole and in the case of any Loan Pair, the holder of the related
Serviced Companion Mortgage Loan and the Trust as a collective whole).
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
248
(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 received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC Pool will
not cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement,
the Special Servicer shall not, on behalf of the Trust, obtain title to a
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and
shall not otherwise acquire possession of, or take any other action with respect
to, any Mortgaged Property, if, as a result of any such action the Trust, or any
trust that holds a Serviced Companion Mortgage Loan would be considered to hold
title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA, or any
applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or affiliate
of the Master Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in the
case of multi-family mortgage loans and customary servicing practices in the
case of commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the
Mortgaged Property in compliance with applicable Environmental Laws is
reasonably likely to produce a greater recovery on a net present value basis
than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions); provided, however, that such compliance pursuant to clause (i)
and (ii) above or the taking of such action pursuant to this clause (iii) shall
only be required to the extent that the cost thereof is a Servicing Advance of
the Master Servicer pursuant to this Agreement, subject to the provisions of
Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced
249
Mortgage Loan is not liquidated and a Final Recovery Determination has been made
with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall
treat such cost as a Servicing Advance subject to the provisions of Section 4.4
hereof; provided that, in the latter event, the Special Servicer shall use its
good faith reasonable business efforts to recover such cost from the Mortgagor
in connection with the curing of the default under the Specially Serviced
Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, is not reasonably likely to
produce a greater recovery on a net present value basis than not taking such
actions (after taking into account the projected costs of such actions) or than
not pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair, taken as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the Special Servicer
determines that a material possibility exists that Liquidation Expenses with
respect to Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the Principal
Balance of the related Mortgage Loan, the Special Servicer shall not attempt to
bring such Mortgaged Property into compliance and shall not acquire title to
such Mortgaged Property unless it has received the written consent of the
Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage Loan
and the holder of the related Serviced Companion Mortgage Loan if in connection
with a Loan Pair), shall sell the REO Property expeditiously, but in any event
within the time period, and subject to the conditions, set forth in Section
9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve,
protect and operate the REO Property for the holders of beneficial interests in
the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair) solely for the purpose of its prompt disposition
and sale.
250
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each REO Property one or more accounts held in trust
for the benefit of the Certificateholders (and the holder of the related B Note
if in connection with an A/B Mortgage Loan and the holder of the related
Serviced Companion Mortgage Loan if in connection with a Loan Pair) in the name
of "LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx
Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates Series
2007-HQ12, the holder of any Serviced Companion Mortgage Loan and the holder of
any B Note as their interests may appear [name of Property Account]" (each, an
"REO Account"), which shall be an Eligible Account. Amounts in any REO Account
shall be invested in Eligible Investments. The Special Servicer shall deposit
all funds received with respect to an REO Property in the applicable REO Account
within two days of receipt. The Special Servicer shall account separately for
funds received or expended with respect to each REO Property. All funds in each
REO Account may be invested only in Eligible Investments. The Special Servicer
shall notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement and any applicable consultation rights of the holder of the related B
Note relating to an A/B Mortgage Loan, to do any and all things in connection
therewith as are consistent with the Servicing Standard, subject to the REMIC
Provisions, and in such manner as the Special Servicer deems to be in the best
interest of the Trust (and in the case of any A/B Mortgage Loan, the holder of
the related B Note and the Trust as a collective whole and in the case of any
Loan Pair, the holder of the related Serviced
251
Companion Mortgage Loan and the Trust as a collective whole), and, consistent
therewith, may advance from its own funds to pay for the following items (which
amounts shall be reimbursed by the Master Servicer or the Trust subject to
Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts
cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not
be inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for the Trust (and, if
applicable, the holder of a B Note or a Serviced Companion Mortgage Loan)
pursuant to this subsection (d) for
252
indemnification of the Special Servicer by such Independent Contractor, and
nothing in this Agreement shall be deemed to limit or modify such
indemnification. All fees of the Independent Contractor (other than fees paid
for performing services within the ordinary duties of a Special Servicer which
shall be paid by the Special Servicer) shall be paid from the income derived
from the REO Property. To the extent that the income from the REO Property is
insufficient, such fees shall be advanced by the Master Servicer as a Servicing
Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf of
the Trust or the beneficial owners thereof with respect to REO Property which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee, the Paying Agent and the Master
Servicer of any election by it to incur such tax, and the Special Servicer (i)
shall hold in escrow in an Eligible Account an amount equal to the tax payable
thereby from revenues collected from the related REO Property, (ii) provide the
Paying Agent with all information for the Paying Agent to file the necessary tax
returns in connection therewith and (iii) upon request from the Paying Agent,
pay from such account to the Paying Agent the amount of the applicable tax. The
Paying Agent shall file the applicable tax returns based on the information
supplied by the Special Servicer and pay the applicable tax from the amounts
collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing,
the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New
Lease with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
253
(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
(f) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not have any obligations with respect to an REO Property
that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan
and all references to the Special Servicer's obligations in this Agreement with
respect to "REO Property" shall exclude any such Mortgaged Property that secures
a Non-Serviced Mortgage Loan.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders
(and with respect to a Serviced Companion Mortgage Loan or a B Note, for the
holders of such loans, as a collective whole), but in no event later than the
end of the third calendar year following the end of the year of its acquisition,
and in any event prior to the Rated Final Distribution Date or earlier to the
extent necessary to comply with REMIC provisions, unless (i) the Trustee, on
behalf of the applicable REMIC Pool, has been granted an extension of time (an
"Extension") (which extension shall be applied for at least 60 days prior to the
expiration of the period specified above) by the Internal Revenue Service to
sell such REO Property (a copy of which shall be delivered to the Paying Agent
upon request), in which case the Special Servicer shall continue to attempt to
sell the REO Property for its fair market value for such period longer than the
period specified above as such Extension permits or (ii) the Special Servicer
seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the Special Servicer) in accordance with the Servicing
Standard; provided, however, that no Interested Person shall be permitted to
purchase the REO Property at a price less than the Purchase Price (other than
the Special Servicer or an affiliated entity in accordance with the next
succeeding proviso); and provided, further that if the Special Servicer or an
affiliated entity intends to bid on or otherwise purchase any REO Property, (i)
the Special
254
Servicer shall notify the Trustee of such intent, (ii) the Trustee shall
promptly obtain, at the expense of the Trust an Appraisal of such REO Property
(or internal valuation in accordance with the procedures specified in Section
6.9) and (iii) the Special Servicer shall not bid less than the fair market
value set forth in such Appraisal. Neither any Seller nor the Depositor may
purchase REO Property at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer
(and the holder of the related B Note, if any, if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan, if
in connection with a Loan Pair) a statement of accounting for such REO Property,
including without limitation, (i) the Acquisition Date for the REO Property,
(ii) the date of disposition of the REO Property, (iii) the sale price and
related selling and other expenses, (iv) accrued interest (including interest
deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO
Property related, calculated from the Acquisition Date to the disposition date,
(v) final property operating statements, and (vi) such other information as the
Trustee or the Paying Agent (and the holder of the related B Note, if any, if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan, if in connection with a Loan Pair) may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection
with the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 RESERVED
.
SECTION 9.18 RESERVED
.
SECTION 9.19 RESERVED
.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to substantially all of the
servicing business of the Special Servicer, shall be the successor of the
Special Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided, however, that
each of the Rating Agencies provides a Rating Agency Confirmation (including
with respect to any securities rated by a Rating Agency evidencing interests in
any Serviced Companion Mortgage Loan or B Note). If the conditions to the
proviso in the foregoing sentence are not met, the Trustee may terminate
255
the Special Servicer's servicing of the Specially Serviced Mortgage Loans
pursuant hereto, such termination to be effected in the manner set forth in
Section 9.31.
Notwithstanding the foregoing, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, the Special Servicer may not
remain the Special Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, except to the extent (i) the Special Servicer is the
surviving entity of such merger, consolidation or transfer or (ii) the Depositor
consents to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in Section 9.20 or this Section
9.21, the Special Servicer shall not resign from the obligations and duties
hereby imposed on it unless it determines that the Special Servicer's duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it.
Any such determination permitting the resignation of the Special Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation (including with
respect to any securities rated by a Rating Agency evidencing interests in any
Serviced Companion Mortgage Loan or B Note) shall have been obtained. Notice of
such resignation shall be given promptly by the Special Servicer to the Master
Servicer and the Trustee. Notwithstanding the foregoing, if the Special Servicer
shall cease to serve as such in accordance with this Section 9.21(a) and a
successor servicer shall not have been engaged, the Trustee or an agent of the
Trustee shall assume the duties and obligations of the Special Servicer under
this Agreement. If the Trustee or an agent of the Trustee assumes the duties and
obligations of the Special Servicer pursuant to this Section 9.12(a), the
Trustee or such agent shall be permitted to resign as special servicer if it has
been replaced by a successor servicer satisfying the criteria in the third
preceding sentence above.
(b) The Special Servicer may resign from the obligations and
duties hereby imposed on it, upon reasonable notice to the Trustee, provided
that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has a net worth of at least
$15,000,000 and (iii) Rating Agency Confirmation is obtained with respect to
such resignation, as evidenced by a letter from each Rating Agency delivered to
the Trustee. Any costs of such resignation and of obtaining a replacement
Special Servicer shall be borne by the Special Servicer and shall not be an
expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the
256
Trustee assuming the obligations and responsibilities of the Special Servicer
hereunder in form and substance reasonably satisfactory to the Trustee.
(d) Upon any resignation or termination of the Special Servicer,
it shall retain the right to receive any and all Work-Out Fees payable in
respect of (i) Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note that became Rehabilitated Mortgage Loans during the period in which it
acted as Special Servicer and that were still Rehabilitated Mortgage Loans at
the time of such resignation or termination or (ii) any Specially Serviced
Mortgage Loan for which the Special Servicer has cured the event of default
under such Specially Serviced Mortgage Loan through a modification,
restructuring or workout negotiated by the Special Servicer and evidenced by a
signed writing, but which had not as of the time the Special Servicer was
terminated, become a Rehabilitated Mortgage Loan solely because it had not been
a performing loan for 90 consecutive days and which subsequently becomes a
Rehabilitated Mortgage Loan as a result of the loan being a performing loan for
such 90 consecutive day period (and the successor Special Servicer shall not be
entitled to any portion of such Work-Out Fees), in each case until such time (if
any) as such Mortgage Loan, Serviced Companion Mortgage Loan or B Note again
becomes a Specially Serviced Mortgage Loan or are no longer included in the
Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. The Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder or
(B) assign and delegate all of its duties hereunder. In the case of any such
assignment and delegation in accordance with the requirements of clause (A) of
this Section, the Special Servicer shall not be released from its obligations
under this Agreement. In the case of any such assignment and delegation in
accordance with the requirements of clause (B) of this Section, the Special
Servicer shall be released from its obligations under this Agreement, except
that the Special Servicer shall remain liable for all liabilities and
obligations incurred by it as the Special Servicer hereunder prior to the
satisfaction of the following conditions: (i) the Special Servicer gives the
Depositor, the Master Servicer, the applicable Primary Servicer and the Trustee
notice of such assignment and delegation; (ii) such purchaser or transferee
accepting such assignment and delegation executes and delivers to the Depositor
and the Trustee an agreement accepting such assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Special Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has a net worth in excess of $15,000,000; (iv) such assignment and delegation is
the subject of a Rating Agency Confirmation; and (v) the Depositor consents to
such assignment and delegation, such consent not be unreasonably withheld.
Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in
accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Special Servicer shall be under any liability to the
Certificateholders, the holder of any B Note, the holder of any
257
Serviced Companion Mortgage Loan or the Trustee for any action taken or for
refraining from the taking of any action in good faith and using reasonable
business judgment, consistent with the Servicing Standard; provided that this
provision shall not protect the Special Servicer or any such person against any
breach of a representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties hereunder or by reason of negligent
disregard of obligations and duties hereunder. The Special Servicer and any
partner, representative, Affiliate, member, manager, director, officer, employee
or agent of the Special Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person (including,
without limitation, the information and reports delivered by or at the direction
of the Master Servicer or any partner, representative, Affiliate, member,
manager, director, officer, employee or agent of the Master Servicer) respecting
any matters arising hereunder. The Special Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Specially Serviced Mortgage Loans in
accordance with this Agreement; provided that the Special Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders, the
holder of any B Note, the holder of any Serviced Companion Mortgage Loan and the
Trustee in the Specially Serviced Mortgage Loans, or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action (other than those that are connected with the routine
performance by the Special Servicer of its duties hereunder) shall be expenses
and costs of the Trust, and the Special Servicer shall be entitled to be
reimbursed therefor as a Servicing Advance, together with interest thereon, as
provided by Section 5.2 hereof. Notwithstanding any term in this Agreement, the
Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any partner, representative,
member, manager, director, officer, employee, agent or Affiliate, shall be
personally liable for any error of judgment made in good faith by any officer,
unless it shall be proved that the Special Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Special Servicer, nor
any partner, representative, member, manager, director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, or the Trustee in this Agreement. The Trust
shall indemnify and hold harmless the Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent such
amounts are not recoverable from the party committing such breach.
258
(d) Except as otherwise specifically provided herein:
(i) 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, appraisal, bond or other paper
or document (in paper or electronic format) believed or in good faith believed
by it to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Special Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from acting
upon any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in paper or electronic
format) reasonably believed or in good faith believed by it to be genuine.
(e) The Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the Special
Servicer shall be indemnified by the Master Servicer, the Paying Agent and the
Trustee, as the case may be, and held harmless 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 or claim relating to the Master Servicer's, the
Trustee's or the Paying Agent's, as the case may be, respective willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or by reason of negligent disregard by such Person of its respective
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of the
Special Servicer's duties hereunder or by reason of negligent disregard of the
Special Servicer's obligations and duties hereunder. The Special Servicer shall
promptly notify the Master Servicer, the Trustee and the Paying Agent, if a
claim is made by a third party entitling the Special Servicer to indemnification
hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, in
each case, to the extent the claim was made in connection with its willful
misfeasance, bad faith or negligence, shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Special Servicer). Any failure to
so notify the Master Servicer, the Trustee or the Paying Agent shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Master Servicer, the Trustee or the Paying
Agent is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Master Servicer, the
Trustee or the Paying Agent, as the case may be, pursuant to this paragraph to
the Special Servicer shall be paid from the Master Servicer's, the Trustee's or
the Paying Agent's, as the case may be, own funds, without reimbursement from
the Trust therefor, except achieved through subrogation as provided in this
259
Agreement. Any expenses incurred or indemnification payments made by the
Trustee, the Paying Agent, or the Master Servicer shall be reimbursed by the
party so paid, if a court of competent jurisdiction makes a final judgment that
the conduct of the Trustee, the Paying Agent or the Master Servicer, as the case
may be, was (x) not culpable of willful misfeasance, bad faith or negligence in
its performance of duties hereunder or of negligent disregard of its duties
hereunder or (y) found to not have acted with willful misfeasance, bad faith or
negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the Special
Servicer shall be indemnified and held harmless by the Trust, out of the
proceeds of the Mortgage Loans and the A/B Mortgage Loan (if and to the extent
that the matter relates to such A/B Mortgage Loan) against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to (i) this Agreement, and (ii) any action taken by
the Special Servicer in accordance with the instruction delivered in writing to
the Special Servicer by the Trustee or the Master Servicer pursuant to any
provision of this Agreement in each case and the Special Servicer and each of
its partners, representatives, Affiliates, members, managers, directors,
officers, employees and agents shall in each case be entitled to indemnification
from the Trust for any loss, liability or expense (including attorneys' fees)
incurred in connection with the provision by the Special Servicer of any
information included by the Special Servicer in the report required to be
provided by the Special Servicer pursuant to this Agreement, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of duties hereunder or by reason of negligent
disregard of obligations and duties hereunder. The Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Special Servicer) and the Trust shall pay, from amounts on deposit in the
Certificate Account pursuant to Section 5.2, all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer. Any
expenses incurred or indemnification payments made by the Trust shall be
reimbursed by the Special Servicer, if a court of competent jurisdiction makes a
final, non-appealable judgment that the Special Servicer was found to have acted
with willful misfeasance, bad faith or negligence. Notwithstanding the
foregoing, if such loss, liability or expense relates specifically to a
particular Serviced Pari Passu Mortgage Loan (or another Mortgage Loan included
in the Trust) or a particular Serviced Companion Mortgage Loan, then such
indemnification shall be paid out of collections on, and other proceeds of, such
Serviced Pari Passu Mortgage Loan, other Mortgage Loan or Serviced Companion
Mortgage Loan, as applicable. If such loss, liability or expense relates to an
A/B Mortgage Loan but does not relate to the related A Note and does not relate
primarily to the administration of the Trust or any REMIC formed hereunder or to
any determination respecting the amount, payment or avoidance of any tax under
the REMIC provisions of the Code or the actual payment of any REMIC tax or
expense, then such indemnification shall be paid first out of collections on,
and other proceeds of, the related B Note until such point as such
indemnification is paid in full or a Final Recovery Determination has been made
with respect to such B Note and only then out of collections on, and other
proceeds of, the related A Note.
260
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the Master Servicer, the Paying Agent and any director,
officer, employee or agent or Controlling Person of the Trustee, the Depositor
and the Master Servicer, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that the Trust or the
Trustee, the Depositor, the Paying Agent or the Master Servicer may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder by the Special Servicer. The Trustee, the
Depositor, the Paying Agent or the Master Servicer shall immediately notify the
Special Servicer if a claim is made by a third party with respect to this
Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the
Trustee, the Depositor, the Paying Agent or the Master Servicer, as the case may
be, to indemnification hereunder, whereupon the Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, the Depositor, the Paying Agent or the Master Servicer, as the case may
be) and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Special Servicer shall not affect any rights the Trust or the Trustee, the
Depositor, the Paying Agent or the Master Servicer may have to indemnification
under this Agreement or otherwise, unless the Special Servicer's defense of such
claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer, the Paying Agent or the Trustee. Any
expenses incurred or indemnification payments made by the Special Servicer shall
be reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Special Servicer was not
culpable of willful misfeasance, bad faith or negligence in its performance of
duties hereunder or of negligent disregard of its duties hereunder or the
indemnifying party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The initial Special Servicer and the Depositor expressly agree
that the only information furnished by or on behalf of the Special Servicer for
inclusion in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement is the information set forth in the paragraph under the caption
"TRANSACTION PARTIES--Special Servicer" of the Preliminary Prospectus Supplement
and Final Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer, and any
director, officer, employee or agent of such Non-Serviced Mortgage Loan Special
Servicer shall be indemnified by the Trust and held harmless against the Trust's
pro rata share of any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to any
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and this Agreement
and relating to any Non-Serviced Mortgage Loan (but excluding any such losses
allocable to the related Non-Serviced Companion Mortgage Loans), reasonably
requiring the use of counsel or the incurring of expenses other than any losses
incurred by reason of any Non-Serviced Mortgage Loan Special Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.25 RESERVED.
261
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide the
necessary information to the Master Servicer to allow the Master Servicer to
comply with the Mortgagor tax reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan
and any REO Property and shall deliver such information with respect thereto as
the Master Servicer or the Paying Agent may request in writing. The Special
Servicer shall provide to the Master Servicer copies of any such reports. The
Master Servicer shall forward such reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that
the Master Servicer will be collecting all payments with respect to the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note (other than payments
with respect to REO Income). If, however, the Special Servicer should receive
any payments with respect to any Mortgage Loan (other than REO Income) it shall,
within one Business Day of receipt from the Mortgagor or otherwise of any
amounts attributable to payments with respect to or the sale of any Mortgage
Loan or any Specially Serviced Mortgage Loan, if any, (but not including REO
Income, which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if applicable,
to the order of the Master Servicer), to the Master Servicer, or (ii) deposit
such amounts, or cause such amounts to be deposited, in the Certificate Account.
The Special Servicer shall notify the Master Servicer of each such amount
received on or before the date required for the making of such deposit or
transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced
Mortgage Loan to which the amount is to be applied and the type of payment made
by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS. The Special Servicer shall act in accordance with this Agreement
and the REMIC Provisions and related provisions of the Code in order to create
or maintain the status of any REMIC Pool as a REMIC or, as appropriate, adopt a
plan of complete liquidation. The Special Servicer shall (A) take no action or
cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC under the Code or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon any REMIC Pool (including, but not
limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) or on prohibited contributions pursuant to Section 860G(d)); and (B)
take no action or cause any Grantor Trust Pool to take any action that could (i)
endanger its status as a grantor trust or (ii) result in the imposition of any
tax upon any Grantor Trust Pool unless the Master Servicer and the Trustee have
received a Nondisqualification Opinion (at the expense of the party seeking to
take such action) to the effect that the contemplated action will not endanger
such status or result in the imposition of such tax. The Special Servicer shall
comply with the provisions of Article XII hereof.
262
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) sixty (60) days following the date
on which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that the Special Servicer is terminated pursuant to Section
9.30(b) or 9.30(c), respectively and (iii) the effective date of any resignation
of the Special Servicer effected pursuant to and in accordance with Section
9.21.
(b) The Trustee may terminate the Special Servicer in the event
that (i) the Special Servicer has failed to remit any amount required to be
remitted to the Trustee, the Master Servicer, the Paying Agent or the Depositor
within one (1) Business Day following the date such amount was required to have
been remitted under the terms of this Agreement, (ii) the Special Servicer has
failed to deposit into any account any amount required to be so deposited or
remitted under the terms of this Agreement which failure continues unremedied
for one Business Day following the date on which such deposit or remittance was
first required to be made; (iii) the Special Servicer has failed to duly observe
or perform in any material respect any of the other covenants or agreements of
the Special Servicer set forth in this Agreement, and the Special Servicer has
failed to remedy such failure within thirty (30) days after written notice of
such failure, requiring the same to be remedied, shall have been given to the
Special Servicer by the Depositor or the Trustee; provided, however, that if the
Special Servicer certifies to the Trustee and the Depositor that the Special
Servicer is in good faith attempting to remedy such failure, and the
Certificateholders would not be affected thereby, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Depositor or the Trustee, provided,
however, that if the Special Servicer certifies to the Trustee and the Depositor
that the Special Servicer is in good faith attempting to remedy such failure,
such cure period may be extended to the extent necessary to permit the Special
Servicer to cure such failure; provided, however, that such cure period may not
exceed 90 days; (v) the Special Servicer has been downgraded to a servicer
rating level below "CSS3" (or its equivalent) by Fitch for a period of 60
consecutive days; (vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vii) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the
263
Special Servicer or of or relating to all or substantially all of its property;
(viii) the Special Servicer thereof shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; (ix)
the Special Servicer is removed from S&P's Select Servicer List as a U.S.
Commercial Mortgage Special Servicer and is not reinstated within 60 days; (x)
the Special Servicer, or any primary servicer or Sub-Servicer appointed by the
Special Servicer, shall fail to deliver any Exchange Act reporting items
required to be delivered by it, and at the times required by, Article XIII of
this Agreement; (xi) the Special Servicer shall fail to terminate any
Sub-Servicer appointed by it on the same terms and conditions as those set forth
in Section 8.4 for a Sub-Servicer of the Master Servicer; provided that the
Depositor may waive any such Event of Default under this clause (xi) in its sole
discretion without the consent of the Trustee or any Certificateholders; or
(xii) the Trustee shall receive notice from Fitch to the effect that the
continuation of the Special Servicer in such capacity would result in the
downgrade, qualification or withdrawal of any rating then assigned by Fitch to
any Class of Certificates and such notice is not rescinded within 60 days. Such
termination shall be effective on the date that the Trustee specifies in a
written notice to the Special Servicer that the Special Servicer is terminated
due to the occurrence of one of the foregoing events and the expiration of any
applicable cure period or grace period specified above for such event. The
Operating Adviser shall have the right to appoint a successor if the Trustee
terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the
Trustee to terminate the Special Servicer, provided that the Operating Adviser
shall appoint a successor Special Servicer (other than any Prohibited Party) who
will execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, whereby the successor Special Servicer
agrees to assume and perform punctually the duties of the Special Servicer
specified in this Agreement; and provided, further, that the Trustee shall have
received Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interests in any Serviced Companion Mortgage
Loan or B Note) from each Rating Agency prior to the termination of the Special
Servicer. The Special Servicer shall not be terminated pursuant to this Section
9.30(c) until a successor Special Servicer shall have been appointed. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)).
(d) To the extent set forth in the related Intercreditor
Agreement, the holder of a B Note, for so long as it is the controlling or
directing holder (as set forth in the related Intercreditor Agreement), shall
have the right to terminate the Special Servicer with respect to the related A/B
Mortgage Loan, upon the appointment and acceptance of such appointment by a
successor to the Special Servicer; provided that if the holder of the the
related B Note so terminates the Special Servicer, the holder of the that B Note
shall appoint a successor Special Servicer who will (i) in the case of the
related A/B Mortgage Loan be reasonably satisfactory to the Trustee and to the
Depositor and (ii) execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, whereby the successor Special
Servicer agrees to assume and perform punctually the duties of the Special
Servicer specified in this Agreement; and provided, further, that the Trustee
shall have received Rating Agency Confirmation from each Rating Agency prior to
the termination of the Special Servicer. The
264
Special Servicer shall not be terminated pursuant to this Section 9.30(d) until
a successor Special Servicer shall have been appointed. The holder of the
applicable B Note shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer pursuant to
this paragraph (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b)).
(e) Notwithstanding the other provisions of this Section 9.30, (A)
if any Event of Default on the part of the Special Servicer occurs that affects
a Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Xxxxx'x, if (x) the Trustee shall receive notice from Xxxxx'x to the
effect that the continuation of the Special Servicer in such capacity would
result in the downgrade, qualification or withdrawal of any rating then assigned
by Xxxxx'x to any class of certificates issued in such securitization or (y)
Xxxxx'x has placed one or more Classes of Certificates on "watch status" in
contemplation of a rating downgrade or withdrawal (and such "watch status"
placement shall not have been withdrawn by Xxxxx'x within 60 days of the date
that the Trustee obtained such actual knowledge) and, in the case of either of
clauses (x) or (y), citing servicing concerns with the Special Servicer as the
sole or material factor in such rating action, and in either case, the Special
Servicer is not otherwise terminated in accordance with this Section 9.30, then
the holder of the affected Serviced Companion Mortgage Loan may require the
Trustee to terminate the duties and obligations of the Special Servicer with
respect to the subject Loan Pair only, but as to no other Mortgage Loan; and, in
such event, subject to the applicable consultation rights of any particular
related Serviced Companion Mortgage Loan under the related Loan Pair
Intercreditor Agreement, the Operating Adviser shall appoint (or, in the event
of the failure of the Operating Adviser to so appoint, the Trustee shall
appoint), within 30 days of such Serviced Companion Mortgage Loan holder's
request, a replacement special servicer with respect to the related Loan Pair.
In connection with the appointment of a replacement special servicer with
respect to a Loan Pair at the request of a related Serviced Companion Mortgage
Loan holder under this Section 9.30(e), the Trustee shall obtain a Rating Agency
Confirmation (such Rating Agency Confirmation to be an expense of the requesting
Serviced Companion Mortgage Loan holder). Any replacement special servicer
appointed at the request of a Serviced Companion Mortgage Loan holder in
accordance with this Section 9.30(e) shall be responsible for all duties, and
shall be entitled to all compensation, of the Special Servicer under this
Agreement with respect to the subject Loan Pair. If a replacement special
servicer is appointed with respect to a Loan Pair or an A/B Mortgage Loan at the
request of the controlling holder of the related A/B Mortgage Loan or a Serviced
Companion Mortgage Loan holder, as applicable, in accordance with Section
9.30(d) or this Section 9.30(e) (any such replacement special servicer, a "Loan
Pair-Specific Special Servicer"), such that there are multiple parties acting as
Special Servicer hereunder, then, unless the context clearly requires otherwise:
(i) when used in the context of imposing duties and obligations on the Special
Servicer hereunder or the performance of such duties and obligations, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer,
insofar as such duties and obligations relate to a Loan Pair or an A/B Mortgage
Loan, as applicable, as to which a Loan Pair-Specific Special Servicer has been
appointed, and shall mean the General Special Servicer, in all other cases
(provided that, in Section 9.18 and Section 9.19, the term "Special Servicer"
shall mean each Loan Pair-Specific Special Servicer and the General Special
Servicer); (ii) when used in the context of identifying the recipient of any
information, funds, documents, instruments and/or other items, the term "Special
Servicer" shall mean the related Loan Pair-Specific Special Servicer, insofar as
such information, funds, documents, instruments and/or other items relate to
265
a Loan Pair or A/B Mortgage Loan, as applicable, as to which a Loan
Pair-Specific Special Servicer has been appointed in accordance with Section
9.30(d) or this Section 9.30(e), and shall mean the General Special Servicer, in
all other cases; (iii) when used in the context of granting the Special Servicer
the right to purchase Specially Serviced Mortgage Loans pursuant to Section
9.36, the term "Special Servicer" shall mean the related Loan Pair-Specific
Special Servicer, if such Specially Serviced Mortgage Loan is part of a Loan
Pair or A/B Mortgage Loan as to which a Loan Pair-Specific Special Servicer has
been appointed in accordance with this Section 9.30(e), and shall mean the
General Special Servicer, in all other cases; (iv) when used in the context of
granting the Special Servicer the right to purchase all of the Mortgage Loans
and any REO Properties remaining in the Trust pursuant to Section 10.1(b), the
term "Special Servicer" shall mean the General Special Servicer only; (v) when
used in the context of granting the Special Servicer any protections,
limitations on liability, immunities and/or indemnities hereunder, the term
"Special Servicer" shall mean each Loan Pair-Specific Special Servicer and the
General Special Servicer; and (vi) when used in the context of requiring
indemnification from, imposing liability on, or exercising any remedies against,
the Special Servicer for any breach of a representation or warranty hereunder or
for any negligence, bad faith or willful misconduct in the performance of duties
and obligations hereunder or any negligent disregard of such duties and
obligations or otherwise holding the Special Servicer responsible for any of the
foregoing, the term "Special Servicer" shall mean the related Loan Pair-Specific
Special Servicer or the General Special Servicer, as applicable. References in
this Section 9.30(e) to "General Special Servicer" mean the Person performing
the duties and obligations of Special Servicer with respect to the Mortgage
Loans (exclusive of each and every Loan Pair as to which a Loan Pair-Specific
Special Servicer has been appointed).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or the last
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan or (ii) the sixth day of the month in which the final Distribution Date
will occur. Upon any such termination, the rights and duties of the Special
Servicer (other than the rights and duties of the Special Servicer pursuant to
Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate and the Special
Servicer shall transfer to the Master Servicer the amounts remaining in each REO
Account and shall thereafter terminate each REO Account and any other account or
fund maintained with respect to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given
to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; provided, that in no event shall the termination of the Special
Servicer be effective until the Trustee or other successor Special Servicer
shall have succeeded the Special Servicer as successor Special Servicer,
notified the Special Servicer of such designation, and such successor Special
Servicer shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form hereof,
with respect to the Specially Serviced Mortgage Loans. The Trustee or other
successor Special Servicer may not succeed the Special Servicer as Special
Servicer until and unless it has satisfied
266
the provisions that would apply to a Person succeeding to the business of the
Special Servicer pursuant to Section 9.20 hereof. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Special
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The Special
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Special Servicer's responsibilities and rights hereunder as Special Servicer
including, without limitation, providing the Trustee all documents and records
in electronic or other form reasonably requested by it to enable the successor
Special Servicer designated by the Trustee to assume the Special Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Special Servicer in any REO Account and any other account
or fund maintained or thereafter received with respect to the Specially Serviced
Mortgage Loans. On the date specified in a written notice of termination given
to the Special Servicer pursuant to the second sentence of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement with
respect to the applicable Serviced Pari Passu Mortgage Loan, whether such
Mortgage Loan is a Specially Serviced Mortgage Loan or otherwise, shall
terminate. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination.
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage
Loan, shall provide to the Master Servicer and the Paying Agent one (1) Business
Day after the Determination Date for each month, the CMSA Special Servicer Loan
File in such electronic format as is mutually acceptable to the Master Servicer
and the Special Servicer and in CMSA format. The Master Servicer and the Paying
Agent may use such reports or information contained therein to prepare its
reports and the Master Servicer may, at its option, forward such reports
directly to the Depositor and the Rating Agencies.
(b) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser, the Paying Agent and the Master Servicer no
later than the tenth Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or
the Paying Agent at the reasonable request in writing of the Master Servicer or
the Paying Agent, any information in its possession with respect to the
Specially Serviced Mortgage Loans which the Master Servicer or Paying Agent, as
the case may be, shall require in order for the Master Servicer or the Paying
Agent to comply with its obligations under this Agreement; provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder. The
Master Servicer shall provide the Special Servicer at the request of the Special
Servicer any information in its possession with respect to the Mortgage Loans
which the Special
267
Servicer shall require in order for the Special Servicer to comply with its
obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the Master Servicer a statement
setting forth the status of each REO Account as of the close of business on such
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by the Special Servicer have
been made (or, if any required distribution has not been made by the Special
Servicer, specifying the nature and status thereof) and showing, for the period
from the day following the preceding Special Servicer Remittance Date to such
Special Servicer Remittance Date, the aggregate of deposits into and withdrawals
from each REO Account for each category of deposit specified in Section 5.1 of
this Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) With respect to Specially Serviced Mortgage Loans, the Special
Servicer shall use reasonable efforts to obtain and, to the extent obtained, to
deliver electronically to the Master Servicer, the Paying Agent, the Rating
Agencies and the Operating Adviser, on or before April 15 of each year,
commencing with April 15, 2007, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged Property
underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal
year end, provided that either the related Mortgage Note or Mortgage requires
the Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll available for
each Mortgaged Property, and (iii) a table, setting forth the Debt Service
Coverage Ratio and occupancy with respect to each Mortgaged Property covered by
the operating statements delivered above; provided, that, with respect to any
Mortgage Loan that becomes a Specially Serviced Mortgage Loan prior to April 15,
2007 and for which the items in clause (i) and (ii) above have not been
delivered, the Special Servicer shall use reasonable efforts to obtain and, to
the extent obtained, deliver such items to the Master Servicer, the Paying
Agent, the Rating Agencies and the Operating Adviser as soon as possible after
receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor, the Paying Agent and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Trustee, the Paying Agent or the Depositor
may from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports with respect to such Mortgage Loans except if any Person (other than the
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
(g) The Special Servicer shall deliver electronically a written
Inspection Report of each Specially Serviced Mortgage Loan in accordance with
Section 9.4(b) to the Operating Adviser.
(h) The Special Servicer shall prepare a report (the "Asset Status
Report") recommending the taking of certain actions for each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan and deliver such Asset Status Report
to the Operating Adviser and the Master Servicer not later than 45 days after
the servicing of such Mortgage Loan is transferred to the Special Servicer. Such
Asset Status Report shall set forth the following information to the extent
reasonably determinable:
268
(i) a 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 (including without
limitation by reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 9.12(c)), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set forth
herein and to the enforcement of any related guaranties or other collateral for
the related Specially Serviced 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 or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer's
recommended action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the calculation
thereof (which the Special Servicer may satisfy by providing a copy of the most
recently obtained Appraisal); and
(vi) such other information as the applicable Special
Servicer deems relevant in light of the Servicing Standard.
If (i) the Operating Adviser affirmatively approves in writing an
Asset Status Report, (ii) after ten Business Days from receipt of an Asset
Status Report the Operating Adviser does not object to such Asset Status Report
or (iii) within ten (10) Business Days after receipt of an Asset Status Report
the Operating Adviser objects to such Asset Status Report and the Special
Servicer makes a determination in accordance with the Servicing Standard that
such objection is not in the best interest of all the Certificateholders, as a
collective whole, the Special Servicer shall take the recommended actions
described in the Asset Status Report. If within ten (10) Business Days after
receipt of an Asset Status Report the Operating Adviser objects to such Asset
Status Report and the Special Servicer does not make a determination in
accordance with the Servicing Standard that such objection is not in the best
interest of all the Certificateholders, as a collective whole, then the Special
Servicer shall revise such Asset Status Report as soon as practicable
thereafter, but in no event later than 30 days after the objection to the Asset
Status Report by the Operating Adviser. The Special Servicer shall revise such
Asset Status Report as provided in the prior sentence until the earliest of (a)
the delivery by the Operating Adviser of an affirmative approval in writing of
such revised Asset Status Report, (b) the failure of the Operating Adviser to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of its receipt thereof; or (c) the passage of ninety (90) days from the
date of preparation of the initial version of the Asset Status Report. Following
the earliest of such events, the Special Servicer shall implement the
recommended action as outlined in the most recent version of such Asset Status
Report (provided that the Special Servicer shall not take any action that is
contrary to applicable law or the terms of the applicable Mortgage Loan
documents). The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement the new action in such revised
report so long as such revised report has been prepared, reviewed and either
approved or not rejected as provided above.
269
Notwithstanding the prior paragraph, the Special Servicer may take
any action set forth in an Asset Status Report before the expiration of the ten
(10) Business Day period during which the Operating Adviser may reject such
report if (A) the Special Servicer has reasonably determined that failure to
take such action would materially and adversely affect the interests of the
Certificateholders, as a collective whole, and (B) it has made a reasonable
effort to contact the Operating Adviser. The Special Servicer may not take any
action inconsistent with an Asset Status Report that has been adopted as
provided above, unless such action would be required in order to act in
accordance with the Servicing Standard. If the Special Servicer takes any action
inconsistent with an Asset Status Report that has been adopted as provided
above, the Special Servicer shall promptly notify the Operating Adviser of such
inconsistent action and provide a reasonably detailed explanation of the reasons
therefor.
The Special Servicer shall deliver to the Master Servicer, the
Operating Adviser and each Rating Agency a copy of each Asset Status Report that
has been adopted as provided above, in each case with reasonable promptness
following such adoption.
Notwithstanding anything herein to the contrary: (i) the Special
Servicer shall have no right or obligation to consult with or to seek and/or
obtain consent or approval from any Operating Adviser prior to acting (and
provisions of this Agreement requiring such consultation, consent or approval
shall be of no effect) during the period following any resignation or removal of
an Operating Adviser and before a replacement is selected; and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by
Section 9.39 or any other provision of this Agreement, may (and the applicable
Special Servicer shall ignore and act without regard to any such advice,
direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would): (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan or any other
Section of this Agreement, including the Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
any Grantor Trust Pool, (C) expose the Trust, the Depositor, the Master
Servicer, the Special Servicer, Certificate Administrator, the Trustee or any of
their respective Affiliates, members, managers, officers, directors, employees
or agents, to any material claim, suit or liability or (D) materially expand the
scope of the Master Servicer's or Special Servicer's responsibilities under this
Agreement.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER, THE TRUSTEE AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable
it to perform its duties under this Agreement or the applicable Primary
Servicing Agreement, as applicable; provided that no such request shall (i)
require or cause the Special Servicer to violate the Code, any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the servicing standards set forth in this Agreement and to maintain the REMIC
status of any REMIC Pool and the grantor trust status of any Grantor Trust Pool
or (ii) expose the Special Servicer, the Trust, the Paying Agent or the Trustee
to liability or materially expand the scope of the Special Servicer's
responsibilities under this Agreement. In addition, the Special Servicer shall
notify the Master Servicer of all expenditures incurred by it with respect to
the Specially Serviced
270
Mortgage Loans which are required to be made by the Master Servicer as Servicing
Advances as provided herein, subject to the provisions of Section 4.4 hereof.
The Special Servicer shall also remit all invoices relating to Servicing
Advances promptly upon receipt of such invoices.
(b) Reserved.
SECTION 9.34 RESERVED.
SECTION 9.35 LITIGATION CONTROL. The Special Servicer shall, (1)
direct, manage, prosecute and/or defend any action brought by a Mortgagor
against the Trust and/or the Special Servicer and (2) represent the interests of
the Trust in any litigation relating to the rights and obligations of such
Mortgagor or the Trust, or the enforcement of the obligations of such Mortgagor,
under the related Mortgage Loan documents ("Trust-Related Litigation").
To the extent the Master Servicer is named in Trust-Related
Litigation, and neither the Trust nor the Special Servicer is named, in order to
effectuate the role of the Special Servicer as contemplated by the immediately
preceding paragraph, the Master Servicer shall (1) notify the Special Servicer
of such Trust-Related Litigation within ten (10) days of the Master Servicer
receiving service of such Trust-Related Litigation; (2) provide monthly status
reports to the Special Servicer regarding such Trust-Related Litigation; (3)
seek to have the Trust replace the Master Servicer as the appropriate party to
the lawsuit; and (4) so long as the Master Servicer remains a party to the
lawsuit, consult with and act at the direction of the Special Servicer with
respect to decisions and resolutions related to the interests of the Trust in
such Trust-Related Litigation, including but not limited to the selection of
counsel, provided, however, if there are claims against the Master Servicer and
the Master Servicer has not determined that separate counsel is required for
such claims, such counsel shall be reasonably acceptable to the Master Servicer.
Notwithstanding the rights of the Special Servicer otherwise set
forth above and below, (i) the Special Servicer shall provide the Master
Servicer with copies of any notices, process and/or pleadings submitted and/or
filed in any such action, suit, litigation or proceeding; (ii) the Master
Servicer may retain its own counsel, whose reasonable costs shall be paid by the
Trust under Section 8.24, and appear in any action, suit, litigation or
proceeding on its own behalf in order to represent, protect and defend its
interests; and (iii) the Master Servicer shall have the right to approve or
disapprove of any judgment, settlement, final order or decree that may impose
liability on the Master Servicer or otherwise materially and adversely affect
the Master Servicer, including, but not limited to, damage to the Master
Servicer's reputation as a master servicer.
Further, nothing in this section shall require the Master Servicer
to take or fail to take any action which, in the Master Servicer's good faith
and reasonable judgment, may (1) result in an Adverse REMIC Event or Adverse
Grantor Trust Event or (2) subject the Master Servicer to liability or
materially expand the scope of the Master Servicer's obligations under this
Agreement.
Subject to the rights of the Master Servicer set forth above and
below, the Special Servicer shall have the right at any time to (1) direct the
Master Servicer to settle any Trust Related Litigation brought against the
Trust, including Trust Related Litigation asserted against
271
the Master Servicer (whether or not the Trust or the Special Servicer is named
in any such Trust-Related Litigation) and (2) otherwise reasonably direct the
actions of the Master Servicer relating to Trust Related Litigation against the
Master Servicer (whether or not the Trust or the Special Servicer is named in
any such claims or Trust-Related Litigation), provided in either case that (A)
such settlement or other direction does not require any admission of liability
or wrongdoing on the part of the Master Servicer or otherwise materially and
adversely affect the Master Servicer, including, but not limited to, damage to
the Master Servicer's reputation as a master servicer, (B) the cost of such
settlement or any resulting judgment is and shall be paid by the Trust, (C) the
Master Servicer is and shall be indemnified pursuant to Section 8.24 hereof for
all costs and expenses of the Master Servicer incurred in defending and settling
the Trust-Related Litigation and for any judgment, (D) any such action taken by
the Master Servicer at the direction of the Special Servicer shall be deemed (as
to such Master Servicer) to be in compliance with the Servicing Standard and (E)
the Special Servicer provides the Master Servicer with assurance reasonably
satisfactory to the Master Servicer as to the items in clauses (A), (B) and (C).
In the event more than one of the Master Servicer and the Special
Servicer or Trust are named in litigation, the Master Servicer and the Special
Servicer shall cooperate with each other to afford the other the rights afforded
to such party in this Section 9.40.
This Section 9.35 shall not apply in the event the Special Servicer
authorizes the Master Servicer, and the Master Servicer agrees (both authority
and agreement to be in writing), to make certain decisions or control certain
Trust-Related Litigation on behalf of the Trust.
Notwithstanding the foregoing, (a) if any action, suit, litigation
or proceeding names the Trustee and/or the Custodian in its individual capacity,
or in the event that any judgment is rendered against the Trustee and/or the
Custodian in its individual capacity, the Trustee and/or the Custodian, upon
prior written notice to the Master Servicers or the Special Servicer, as
applicable, may retain counsel and appear in any such proceeding on its own
behalf in order to protect and represent its interests (provided that the Master
Servicer or the Special Servicer shall retain the right to manage and direct any
such action, suit, litigation or proceeding); (b) in the event of any action,
suit, litigation or proceeding, other than an action, suit, litigation or
proceeding relating to the enforcement of the obligations of a Mortgagor,
guarantor or other obligor under the related Mortgage Loan documents, or
otherwise relating to one or more Mortgage Loans or Mortgaged Properties,
neither the Master Servicer nor the Special Servicer shall, without the prior
written consent of the Trustee or Custodian, (i) initiate an action, suit,
litigation or proceeding in the name of the Trustee or Custodian, whether in
such capacity or individually, (ii) engage counsel to represent the Trustee or
Custodian, or (iii) prepare, execute or deliver any government filings, forms,
permits, registrations or other documents or take any other similar action with
the intent to cause, and that actually causes, the LaSalle to be registered to
do business in any state; and (c) in the event that any court finds that the
Trustee or Custodian is a necessary party in respect of any action, suit,
litigation or proceeding relating to or arising from this Agreement or any
Mortgage Loan, the Trustee or Custodian shall have the right to retain counsel
and appear in any such proceeding on its own behalf in order to protect and
represent its interests, whether as Trustee or Custodian or individually
(provided that the Master Servicer or the Special Servicer shall retain the
right to manage and direct any such action, suit, litigation or proceeding).
272
Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Paying Agent, Certificate Registrar
and/or Authenticating Agent, as applicable, in its individual capacity, or in
the event that any judgment is rendered against the Paying Agent, Certificate
Registrar and/or Authenticating Agent, as applicable, in its individual
capacity, the Paying Agent, Certificate Registrar and/or Authenticating Agent,
as applicable, upon prior written notice to the Special Servicer, may retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interests (but not to otherwise direct, manage or prosecute
such litigation or claim), (ii) in the event of any action, suit, litigation or
proceeding, other than an action, suit, litigation or proceeding relating to the
enforcement of the obligations of a Mortgagor under the related Mortgage Loan
documents, the Special Servicer shall not, without the prior written consent of
the Paying Agent, Certificate Registrar and/or Authenticating Agent, as
applicable, (A) initiate any action, suit, litigation or proceeding in the name
of the Paying Agent, Certificate Registrar and/or Authenticating Agent, as
applicable, whether in such capacity or individually, (B) engage counsel to
represent the Paying Agent, Certificate Registrar and/or Authenticating Agent,
as applicable, or (C) prepare, execute or deliver any government filings, forms,
permits, registrations or other documents or take any other similar action with
the intent to cause, and that actually causes, the Paying Agent, Certificate
Registrar and/or Authenticating Agent, as applicable, to be registered to do
business in any state, and (iii) in the event that any court finds that the
Paying Agent, Certificate Registrar and/or Authenticating Agent, as applicable,
is a necessary party in respect of any action, suit, litigation or proceeding
relating to or arising from this Agreement or any Mortgage Loan, the Paying
Agent, Certificate Registrar and/or Authenticating Agent, as applicable, shall
have the right to retain counsel and appear in any such proceeding on its own
behalf in order to protect and represent its interest (but not to otherwise
direct, manage or prosecute such litigation or claim).
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer and the holder of Certificates evidencing
the greatest percentage interest in the Controlling Class (in such capacity,
together with any assignee, the "Option Holder") shall, in that order, have the
right, at its option (the "Option"), to purchase a Mortgage Loan (other than a
Non-Serviced Mortgage Loan that is subject to a comparable option under the
related Other Companion Loan Pooling and Servicing Agreement) from the Trust at
a price equal to the Option Purchase Price upon receipt of notice from the
Special Servicer that such Mortgage Loan has become at least 60 days delinquent
as to any monthly debt service payment (or is delinquent as to its Balloon
Payment); provided, however, that with respect to an A Note, the Option Holder's
rights under this Section 9.36 are subject to the rights of the holder of the
related B Note to purchase the A Note pursuant to the terms of the related
Intercreditor Agreement. The Option is exercisable, subject to Section 2.3, from
that date until terminated pursuant to clause (e) below, and during that period
the Option shall be exercisable in any month only during the period from the
10th calendar day of such month through the 25th calendar day, inclusive, of
such month. The Trustee on behalf of the Trust shall be obligated to sell such
Mortgage Loan upon the exercise of the Option (whether exercised by the original
holder thereof or by a holder that acquired such Option by assignment), but
shall have no authority to sell such Mortgage Loan other than in connection with
the exercise of an Option (or in connection with a repurchase of a Mortgage Loan
under Article II, an optional termination pursuant to Section 10.1 or a
qualified liquidation of a REMIC Pool) or if such Mortgage Loan is an A Note, to
the holder of the related B Note pursuant to the terms of the related
Intercreditor Agreement. Any Option
273
Holder that exercises the Option shall be required to purchase the applicable
Mortgage Loan on the 4th Business Day after such exercise. If any Option Holder
desires to waive its right to exercise the Option, then it shall so notify the
Trustee in writing, and the Trustee shall promptly notify the next party
eligible to hold the Option set forth above of its rights hereunder. Any of the
parties eligible to hold the Option set forth above may at any time notify the
Trustee in writing of its desire to exercise the Option, and the Trustee shall
promptly notify (i) the current Option Holder (and the other parties eligible to
hold the Option) and (ii) solely with respect to an Option to purchase an A
Note, the holder of the related B Note, of such party's desire to exercise the
Option; provided that none of the Trustee, the Master Servicer or the Special
Servicer shall disclose the Option Purchase Price to the holder of such related
B Note. If the Option Holder neither (i) exercises the Option nor (ii)
surrenders its right to exercise the Option within 3 Business Days of its
receipt of that notice, then the Option Holder's right to exercise the Option
shall lapse, and the Trustee shall promptly notify the next party eligible to
hold the Option (and the other parties eligible to hold the Option) of its
rights thereunder. The Certificate Registrar shall notify the Trustee as to the
identity of the holder of Certificates evidencing the greatest percentage
interest in the Controlling Class for purposes of determining an Option Holder.
(b) The purchase price in connection with the exercise of the
Option (the "Option Purchase Price") shall be an amount equal to the fair value
of the related Mortgage Loan, as determined by the Special Servicer. Prior to
the Special Servicer's determination of fair value referred to in the preceding
sentence, the fair value of a Mortgage Loan shall be deemed to be an amount
equal to the Purchase Price plus (i) any prepayment penalty or yield maintenance
charge then payable upon the prepayment of such Mortgage Loan and (ii) the
reasonable fees and expenses of the Special Servicer, the Master Servicer and
the Trustee incurred in connection with the sale of the Mortgage Loan. The
Special Servicer shall determine the fair value of a Mortgage Loan on the later
of (A) as soon as reasonably practical upon the Mortgage Loan becoming 60 days
delinquent or upon the Balloon Payment becoming delinquent and (B) the date that
is 75 days after the Special Servicer's receipt of the Servicer Mortgage File
relating to such Mortgage Loan, and the Special Servicer shall promptly notify
the Option Holder (and the Trustee and each of the other parties set forth above
that could become the Option Holder) of (i) the Option Purchase Price and (ii)
if such Mortgage Loan is an A Note, that the A Note is subject to the terms of
the related Intercreditor Agreement and that any purchaser of the A Note will be
subject to such Intercreditor Agreement. The Special Servicer is required to
recalculate the fair value of the Mortgage Loan if there has been a material
change in circumstances or the Special Servicer has received new information
(including, without limitation, any cash bids received from the holder of the
related B Note in connection with an A Note), either of which has a material
effect on the fair value, provided that the Special Servicer shall be required
to recalculate the fair value of the Mortgage Loan if the time between the date
of last determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve
274
months; any views on fair value expressed by Independent investors in mortgage
loans comparable to the Mortgage Loan (provided that the Special Servicer shall
not be obligated to solicit such views); the period and amount of any
delinquency on the affected Mortgage Loan; whether to the Special Servicer's
actual knowledge, the Mortgage Loan is in default to avoid a prepayment
restriction; the physical condition of the related Mortgaged Property; the state
of the local economy; the expected recoveries from the Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of the
Option being exercised; and the Trust's obligation to dispose of any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders, but in no event later than the three-year
period (or such extended period) specified in Section 9.15. If the Mortgage Loan
as to which the Option relates is a Serviced Pari Passu Mortgage Loan, then the
Option Holder, in connection with its exercise of such option, shall also be
required to purchase the related Serviced Companion Mortgage Loan under the
Other Pooling and Servicing Agreement or the related Intercreditor Agreement.
Pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement, if the holder of the option thereunder repurchases a Non-Serviced
Companion Mortgage Loan in connection with its exercise of such option, then the
holder of the option shall also be required to purchase the related Non-Serviced
Mortgage Loan, but only if set forth in such Non-Serviced Mortgage Loan Pooling
and Servicing Agreement. If the Mortgage Loan as to which the Option relates is
a Non-Serviced Mortgage Loan, and the party exercising the purchase option under
the Other Companion Loan Pooling and Servicing Agreement in respect of the
related Non-Serviced Companion Mortgage Loan is not required thereunder to
simultaneously purchase the related Non-Serviced Mortgage Loan held by the Trust
upon a purchase of the Non-Serviced Companion Mortgage Loan, then the Special
Servicer shall calculate the Option Purchase Price of the Non-Serviced Mortgage
Loan based upon the fair market value calculation performed by the special
servicer or other party under the Other Companion Loan Pooling and Servicing
Agreement (upon which the Special Servicer may rely), to the extent provided to
the Special Servicer.
(c) Any Option relating to a Mortgage Loan shall be assignable to
a third party (including, without limitation, in connection with an A Note, the
holder of the related B Note and in connection with a Serviced Pari Passu
Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan),
other than an assignee whose purchase of the related Mortgage Loan would violate
the terms of any related intercreditor agreement, by the Option Holder at its
discretion at any time after its receipt of notice from the Special Servicer
that an Option is exercisable with respect to a specified Mortgage Loan, and
upon such assignment such third party shall have all of the rights granted to
the Option Holder hereunder in respect of the Option. Such assignment shall only
be effective upon written notice (together with a copy of the executed
assignment and assumption agreement) being delivered to the Trustee, the Master
Servicer and the Special Servicer, and none of such parties shall be obligated
to recognize any entity as an Option Holder absent such notice.
(d) If the Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraisal or other expert in real estate matters selected by the
Trustee with reasonable care and retained by
275
the Trustee at the expense of the party exercising the Option, provided that
such expense is reasonable. The Trustee may also rely on the most recent
Appraisal of the related Mortgaged Property that was prepared in accordance with
this Agreement. If the Trustee were to determine that the Option Purchase Price
does not constitute a fair price, then the Special Servicer shall redetermine
the fair value taking into account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as
set forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a workout arrangement, (iii) been foreclosed
upon or otherwise resolved (including by a full or discounted pay-off) or (iv)
been purchased by the Seller pursuant to Section 2.3. In addition, the Option
with respect to an A Note shall terminate upon the purchase of the A Note by the
holder of the related B Note pursuant to the related Intercreditor Agreement.
(f) Unless and until an Option Holder exercises an Option, the
Special Servicer shall continue to service and administer the related Mortgage
Loan in accordance with the Servicing Standard and this Agreement, and shall
pursue such other resolution or recovery strategies, including workout or
foreclosure, as are consistent with this Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the Operating Adviser. The Operating Adviser
shall be elected for the purpose of receiving reports and information from the
Special Servicer in respect of the Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is LNR Securities Holdings, LLC.
The Controlling Class shall give written notice to the Trustee, the Paying Agent
and the Master Servicer of the appointment of any subsequent Operating Adviser
(in order to receive notices hereunder). If a subsequent Operating Adviser is
not so appointed, an election of an Operating Adviser also shall be held. Notice
of the meeting of the Holders of the Controlling Class shall be mailed or
delivered to each Holder by the Paying Agent, not less than 10 nor more than 60
days prior to the meeting. The notice shall state the place and the time of the
meeting, which may be held by telephone. A majority of Certificate Balance of
the Certificates of the then Controlling Class, present in person or represented
by proxy, shall constitute a quorum for the nomination of an Operating Adviser.
At the meeting, each Holder shall be entitled to nominate one Person to act as
Operating Adviser. The Paying Agent shall cause the election of the Operating
Adviser to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall
be entitled to vote in each election of the Operating Adviser. The voting in
each election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
276
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly notify the Trustee of the identity of the Operating Adviser. Until a
successor Operating Adviser is elected by Holders of Certificates representing
more than 50% of the Certificate Balance of the Certificates of the then
Controlling Class or in the event that an Operating Adviser as the initial
Operating Adviser shall have resigned or been removed and a successor Operating
Adviser shall not have been elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Paying Agent, of more
than 50% of the Certificate Balance of the Holders of the Certificates of the
then Controlling Class.
(e) The Paying Agent shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Paying Agent shall be conclusive. Notwithstanding any other provisions of this
Section 9.37, the Paying Agent may make such reasonable regulations as it may
deem advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any
other provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the Depositor, the
Master Servicer, the Special Servicer, the Trustee and the Paying Agent, the
holder of any Serviced Companion Mortgage Loan, the holder of any B Note or the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith and using reasonable business judgment pursuant to
this Agreement. By its acceptance of a Certificate, each Certificateholder (and
Certificate Owner) confirms its understanding that the Operating Adviser may
take actions that favor the interests of one or more Classes of the Certificates
over other Classes of the Certificates and that the Operating Adviser may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates and each holder of a Serviced Companion Mortgage
Loan and B Note (if any) and each Certificateholder (and Certificate Owner)
agrees to take no action against the Operating Adviser based upon such special
relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. Notwithstanding anything
to the contrary herein, including but not limited to Article VIII hereof, the
Operating Adviser will receive notice of and may advise the Special Servicer
with respect to the following actions of the Special Servicer with respect to
any Mortgage Loan: (i) any proposed modification of a Money Term of a Mortgage
Loan other than an extension of the original maturity date for 2 years or less;
277
(ii) with respect to notice only, any proposed sale of a
Defaulted Mortgage Loan, pursuant to Section 9.36;
(iii) any determination to bring an REO Property into
compliance with Environmental Laws;
(iv) any acceptance of substitute or additional collateral
for a Mortgage Loan not expressly required under such Mortgage Loan (except with
respect to a Defeasance Loan);
(v) any waiver of a "due on-sale" or "due on-encumbrance"
clause;
(vi) any acceptance of an assumption agreement; and
(vii) any release of collateral for a Specially Serviced
Mortgage Loan (other than in accordance with the terms of or upon satisfaction
of such Mortgage Loan).
In addition, notwithstanding anything to the contrary herein,
including but not limited to Article VIII hereof, the Operating Adviser shall
have the right to approve any of the following actions by the Special Servicer:
(i) any actual or proposed foreclosure upon or comparable
conversion (which may include acquisition of an REO Property) of the ownership
of properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any acceptance of a discounted payoff; and
(iii) any release of "earn out" or performance reserves listed
on Schedule V hereof, on deposit in an Escrow Account, other than where such
release does not require the consent of the lender.
If the Special Servicer determines that immediate action is
necessary to protect the interests of the Certificateholders and/or the holders
of each Serviced Companion Mortgage Loan, as the case may be, the applicable
Special Servicer may take any such action without waiting for the Operating
Adviser's advice or approval. No advice or approval or lack of approval of the
Operating Adviser may (and the Special Servicer shall ignore and act without
regard to any such advice or approval or lack of approval that the Special
Servicer has determined, in its reasonable, good faith judgment, would) (A)
require or cause the Special Servicer to violate applicable law, the terms of
any Mortgage Loan or Serviced Companion Mortgage Loan or any other Section of
this Agreement, including the Special Servicer's obligation to act in accordance
with the Servicing Standard, (B) result in Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to any Grantor
Trust Pool, (C) endanger the status of any grantor trust formed herein as a
grantor trust, (D) expose the Trust, the Depositor, the Master Servicer, the
Special Servicer, the Trustee or any of their respective Affiliates, members,
managers, partners, representatives, officers, directors, employees or agents,
to any material claim, suit or liability, or (E) expand the scope of the Master
Servicer's or Special Servicer's responsibilities under this Agreement.
278
Any notices required to be delivered to the Special Servicer with
respect to items (i) through (vii) of subsection (a) above and items (i) through
(iii) of subsection (b) above by any other party to this Agreement shall be
simultaneously delivered to the Operating Adviser. With respect to items (v),
(vi) and (vii) of subsection (a) above, the Operating Adviser shall be subject
to the same time periods for advising the Special Servicer with respect to any
such matters as are afforded to the Special Servicer pursuant to Section 8.7,
which periods shall be co-terminus with those of the Special Servicer. The
Special Servicer shall provide the Operating Adviser with its recommendations
with respect to the matters set forth in both (a) and (b) above within 5
Business Days of the Special Servicer's receipt of notice thereof. In addition,
the Operating Adviser may direct the Trustee to remove the Special Servicer at
any time upon the appointment and acceptance of such appointment by a successor
to the Special Servicer; provided that, prior to the effectiveness of any such
appointment, the Trustee and the Paying Agent shall have received Rating Agency
Confirmation from each Rating Agency. The Operating Adviser shall pay any costs
and expenses incurred by the Trust in connection with the removal and
appointment of a Special Servicer (unless such removal is based on any of the
events or circumstances set forth in Section 9.30(b)). The Trustee shall notify
the Paying Agent promptly upon its receipt of the direction set forth above.
Notwithstanding any other provision in this Agreement, the Operating Adviser
shall have the right to appoint a sub-operating adviser with respect to any
particular Mortgage Loan Such sub-operating adviser shall have the right,
subject to Rating Agency Confirmation, to appoint, or serve as, the Special
Servicer with respect to such Mortgage Loan. All references in this Agreement to
the "Operating Adviser" and the "Special Servicer" shall refer to the
sub-operating adviser or the special servicer appointed by the sub-operating
adviser, as applicable; provided, however, that the Special Servicer shall not
have any advancing obligations with respect to such Mortgage Loans.
Any right to take any action, grant or withhold any consent or
otherwise exercise any right, election or remedy afforded the Operating Adviser
under this Agreement may, unless otherwise expressly provided herein to the
contrary, be affirmatively waived by the Operating Adviser by written notice to
the Trustee or the Master Servicer, as applicable. Upon delivery of any such
notice of waiver given by the Operating Adviser, any time period (exclusive or
otherwise) afforded the Operating Adviser to exercise any such right, make any
such election or grant or withhold any such consent shall thereupon be deemed to
have expired with the same force and effect as if the specific time period set
forth in this Agreement applicable thereto had itself expired.
The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to such
matters, the expense of which shall not be an expense of the Trust.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.
With respect to each A/B Mortgage Loan (if any), the holder of the B
Note shall have such consent rights or consultation rights, if any, during the
specified time periods, as are set forth in the related Intercreditor Agreement.
Notwithstanding the foregoing, if the Master Servicer or Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
that immediate action is necessary to protect the interest of the
Certificateholders and the holder of any related Serviced
279
Companion Mortgage Loan (as a collective whole), then the Master Servicer or
Special Servicer, as applicable may take any such action without waiting for the
response of the holder of the B Note provided for in the related Intercreditor
Agreement.
In addition, with respect to any A/B Mortgage Loan, to the extent
provided for in the related Intercreditor Agreement, the holder of the B Note
may direct the Master Servicer or Special Servicer, as applicable, to take, or
to refrain from taking, such actions as the holder of the B Note may deem
advisable or as to which provision is otherwise made herein. Upon reasonable
request to the extent provided in the related Intercreditor Agreement, the
Master Servicer or Special Servicer, as applicable, shall, with respect to any
A/B Mortgage Loan, provide the holder of the B Note with any information in the
Master Servicer's or Special Servicer's, as applicable, possession with respect
to such matters, including its reasons for determining to take a proposed
action.
In the event that the holder of the B Note shall direct the Master
Servicer or the Special Servicer to take any action (other than those provided
for in the related Intercreditor Agreement), the Master Servicer or the Special
Servicer shall be entitled to receive reimbursement from collections on and
other proceeds of the B Note for (i) its reasonable out-of-pocket expenses
incurred in taking such action and (ii) to the extent that such action
constitutes an extraordinary action not in the ordinary course of administering
and servicing such mortgage loan, other reasonable costs incurred by the Master
Servicer or the Special Servicer in taking such action. The Master Servicer or
the Special Servicer shall notify the holder of the B Note, prior to taking the
related action, if the Master Servicer or the Special Servicer anticipates that
it will seek reimbursement therefor under the preceding sentence, and of the
estimated amount of such reimbursement, and shall further notify the holder of
the B Note if it intends to obtain actual reimbursement in excess of the
estimated amount.
Notwithstanding anything herein to the contrary, no advice,
direction or objection from the holder of the B Note, as contemplated by this
Section 9.40, may (and the Master Servicer and Special Servicer, as applicable,
shall ignore and act without regard to any such advice, direction or objection
that the Master Servicer or Special Servicer, as applicable, has determined, in
accordance with the Servicing Standard, will) require or cause the Master
Servicer or Special Servicer to violate any provision of this Agreement or the
Mortgage Loans, including the Master Servicer's and Special Servicer's
obligation to act in accordance with the Servicing Standard.
Notwithstanding anything to the contrary set forth in this
Agreement, the Master Servicer, the Special Servicer and the Operating Adviser
acknowledge that, with respect to any A/B Mortgage Loan, to the extent provided
for in the related Intercreditor Agreement, the controlling noteholder with
respect to such A/B Mortgage Loan shall be entitled to exercise the rights and
powers granted to the Operating Adviser herein with respect to such A/B Mortgage
Loan, as applicable, and that all references in this Agreement to the term
"Operating Adviser" and to the Operating Adviser appointed pursuant to Section
9.37 shall be deemed (solely with respect to the applicable A/B Mortgage Loan)
to refer to the holder of the related B Note; provided, however, that if the
holder of the related A Note is the controlling noteholder in accordance with
the terms of the related Intercreditor Agreement, then the controlling
noteholder will be the holder of the related Mortgage Loan (such rights and
powers to be exercisable by the Operating Adviser). Notwithstanding the
foregoing, the Operating Adviser designated by the
280
Certificateholders shall also receive all notices and reports delivered to the
Operating Adviser appointed pursuant to the related Intercreditor Agreement.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION
OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent, to
make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders, the Class R-III Certificateholders, the Class A-2FL
Certificateholders, the Class A-MFL Certificateholders and the Class A-JFL
Certificateholders as set forth in Section 10.2 and other than the obligations
in the nature of information or tax reporting) shall terminate on the earliest
of (i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders) or (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) or (iii) the termination of the
Trust pursuant to Section 10.1(c) below or (iv) the termination of the Trust
pursuant to Section 10.1(d) below; provided that in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Master Servicer shall give the Trustee, the Luxembourg
Paying Agent and the Paying Agent notice of the date when the Aggregate
Principal Balance of the Mortgage Loans is less than or equal to one percent
(1%) of the initial Aggregate Principal Balance of the Mortgage Loans as of the
Cut-Off Date. The Paying Agent shall promptly forward such notice to the
Trustee, the Depositor, the Operating Adviser, the Special Servicer, the Master
Servicer and the Holders of the Class R-I Certificates; and the Special
Servicer, the Operating Adviser, the Master Servicer and the Holders of the
Class R-I Certificates, in such priority (and in the case of the Class R-I
Certificateholders, a majority of the Class R-I Certificateholders), may
purchase, in whole only, the Mortgage Loans and any other property, if any,
remaining in the Trust. If any party desires to exercise such option, it will
notify the Trustee who will notify any party with a prior right to exercise such
option. If any party that has been provided notice by the Trustee (excluding the
Depositor) notifies the Trustee within ten Business Days after receiving notice
of the proposed purchase that it wishes to purchase the assets of the Trust,
then such party (or, in the event that more than one of such parties notifies
the Trustee that it wishes to purchase the assets of the Trust, the party with
the first right to purchase the assets of the Trust) may purchase the assets of
the Trust in accordance with this Agreement. Upon the Paying Agent's receipt of
the Termination Price set forth below, the Custodian shall promptly release or
cause to be released to the Master Servicer for the benefit of the Holder of a
majority of the Controlling Class, the Holder of a majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(other than Mortgage Loans as to which a Final Recovery Determination has been
made) on the day of such purchase plus accrued and unpaid interest thereon at
the applicable Mortgage
281
Rates (or Mortgage Rates less the Master Servicing Fee Rate if the Master
Servicer is the purchaser), with respect to the Mortgage Loans to the Due Date
for each Mortgage Loan ending in the Collection Period with respect to which
such purchase occurs, plus unreimbursed Advances and interest on such
unreimbursed Advances at the Advance Rate, and the fair market value of any
other property remaining in REMIC I. The Trustee shall consult with the
Placement Agent and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if an
Affiliate of the Placement Agent or the Underwriters is exercising its right to
purchase the Trust assets, the Trustee shall consult with the Operating Adviser
in order for the Trustee to determine the fair market value, provided that the
Operating Adviser is not an Affiliate of the Class R-I Holder, the Special
Servicer or the Master Servicer, or the Trustee (the fees and expenses of such
determination which shall be paid for by the buyer of the property). As a
condition to the purchase of the Trust pursuant to this Section 10.1(b), the
Holder of a majority of the Controlling Class, the Holder of a majority of the
Class R-I Certificates, the Special Servicer or the Master Servicer, as the case
may be, must deliver to the Trustee an Opinion of Counsel, which shall be at the
expense of such Holders, the Special Servicer or the Master Servicer, as the
case may be, stating that such termination will be a "qualified liquidation"
under section 860F(a)(4) of the Code. Such purchase shall be made in accordance
with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own
100% of the REMIC III Certificates, the Class A-2FL Certificates, the Class
A-MFL Certificates and the Class A-JFL Certificates, such Holders may terminate
REMIC I (which will in turn result in the termination of REMIC II and REMIC III)
upon (i) the delivery to the Trustee and the Depositor of an Opinion of Counsel
(which opinion shall be at the expense of such Holders) stating that such
termination will be a "qualified liquidation" of each REMIC Pool under Section
860F of the Code, (ii) the payment of any and all costs associated with such
termination and (iii) payments to the Master Servicer of market price
compensation for the loss of the applicable servicing rights hereunder. Such
termination shall be made in accordance with Section 10.3.
(d) Following the date on which the Aggregate Certificate Balance
of the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-M, Class A-MFL, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates is reduced to zero, the Sole
Certificateholder shall have the right to purchase from the Trust in exchange
for all of the outstanding Certificates (other than the Residual Certificates),
all of the Mortgage Loans and each REO Property remaining in the Trust as
contemplated by clause (iv) of Section 10.1(a) by giving written notice to all
the parties hereto no later than 60 days prior to the anticipated date of
exchange and upon the delivery to the Trustee, the Paying Agent and the
Depositor of an Opinion of Counsel (which opinion shall be at the expense of
such Sole Certificateholders) stating that such exchange will be a "qualified
liquidation" of each REMIC Pool under Section 860F of the Code. Such purchase
shall be made in accordance with Section 10.3. In the event that the Sole
Certificateholder elects to purchase all of the Mortgage Loans and each REO
Property remaining in the Trust in exchange for all of the Certificates (other
than the Residual Certificates) 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 (or an escrow account acceptable to the respective parties hereto ) an
amount in immediately available funds equal to all amounts due and owing to the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and
282
the Trustee under this Agreement through the date of the liquidation of the
Trust that may be withdrawn from the Certificate Account or the Distribution
Account, but only to the extent that such amounts are not already on deposit in
the Certificate Account or the Distribution Account as applicable (the "Final
Deposit"). Upon confirmation that the Final Deposit has been made and following
the surrender of all the outstanding Certificates (other than the Residual
Certificates) on such Distribution Date, the Custodian 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, and the Trust shall be liquidated in accordance with
Section 10.2. For federal income tax purposes, the Sole Certificateholder shall
be deemed to have purchased the assets of REMIC I and the Excess Interest
Grantor Trust for an amount equal to the sum of (i) the remaining Aggregate
Certificate Balance of the outstanding Certificates (other than the Residual
Certificates), plus accrued and unpaid interest with respect thereto, and (ii)
the Final Deposit, and the Paying Agent shall net such amounts against amounts
distributable in respect of such Certificates.
(e) Upon the termination of the Trust, (i) any funds or other
property held by the Excess Interest Grantor Trust related to Excess Interest
shall be distributed to the Class T Certificateholders on a pro rata basis, (ii)
any funds or other property held by the the Class A-2FL Grantor Trust shall be
distributed to the Class A-2FL Certificateholders on a pro rata basis, (iii) any
funds or other property held by the the Class A-MFL Grantor Trust shall be
distributed to the Class A-MFL Certificateholders on a pro rata basis, and (iv)
any funds or other property held by the the Class A-JFL Grantor Trust shall be
distributed to the Class A-JFL Certificateholders on a pro rata basis.
(f) Upon the sale of the A Note relating to an A/B Mortgage Loan
by the Trust or the payment in full of such A Note, the related B Note shall no
longer be subject to this Agreement and shall no longer be serviced by the
Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Paying Agent by first class mail
to the Trustee, the Rating Agencies, the Swap Counterparty, the Holders of the
Residual Certificates, the Class T Certificates and the REMIC Regular
Certificates, the Class A-2FL Certificates, the Class A-MFL Certificates and the
Class A-JFL Certificates mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Residual Certificates, the REMIC Regular Certificates,
the Class T Certificates and the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates will be made, and upon
presentation and surrender of such Certificates at the office or agency of the
Certificate Registrar therein specified, and (B) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distribution being made
only upon presentation and surrender of such Certificates at the office or
agency of the Certificate Registrar therein specified. The Paying Agent shall
give such notice to the Depositor and the Certificate Registrar at the time such
notice is given to Holders of such Certificates. Upon any such termination, the
duties of the
283
Certificate Registrar with respect to the Residual Certificates and the REMIC
Regular Certificates, the Class T Certificates and the Class A-2FL Certificates,
the Class A-MFL Certificates and the Class A-JFL Certificates shall terminate
and the Trustee shall terminate, or request the Master Servicer and the Paying
Agent to terminate, the Certificate Account and the Distribution Account and any
other account or fund maintained with respect to the Certificates, subject to
the Paying Agent's obligation hereunder to hold all amounts payable to the
Holders of the Residual Certificates and the REMIC Regular Certificates, the
Class A-2FL Certificates, the Class A-MFL Certificates and the Class A-JFL
Certificates in trust without interest pending such payment.
(b) If all of the Holders do not surrender their certificates
evidencing the Residual Certificates, the Class T Certificates, the Class A-2FL
Certificates, the Class A-MFL Certificates, the Class A-JFL Certificates and the
REMIC Regular Certificates for cancellation within three months after the time
specified in the above-mentioned written notice, the Certificate Registrar shall
give a second written notice to the remaining Holders of such Certificates to
surrender their certificates evidencing such Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Certificate Registrar may take appropriate steps to contact
the remaining Holders of such Certificates concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Certificates shall not have been surrendered for cancellation, the Paying
Agent shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to a
Holder of such Certificates due to such Certificateholder's failure to surrender
its Certificate(s) for payment of the final distribution thereon in accordance
with this Section. Any money held by the Paying Agent pending distribution under
this Section 10.2 after 90 days after the adoption of a plan of complete
liquidation shall be deemed for tax purposes to have been distributed from the
REMIC Pools and shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC Pool shall be terminated in
accordance with the following additional requirements, unless at the request of
the Master Servicer or the Class R-I Certificateholders, as the case may be, the
Trustee seeks, and the Paying Agent subsequently receives an Opinion of Counsel
(at the expense of the Master Servicer or the Class R-I Certificateholders, as
the case may be), addressed to the Depositor, the Trustee and the Paying Agent
to the effect that the failure of the Trust to comply with the requirements of
this Section 10.3 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC Pool under the REMIC Provisions or (ii) cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the REMIC III Certificates, the Class A-2FL Certificates, the
Class A-MFL Certificates and the Class A-JFL Certificates, the Master Servicer
shall prepare and the Trustee (on behalf of REMIC I, REMIC II or REMIC III)
shall adopt a plan of complete liquidation of the REMIC I Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which plan
need not be in any special form and the date of which, in general, shall be
284
the date of the notice specified in Section 10.2(a) and shall be specified in a
statement attached to the federal income tax return of each REMIC Pool;
(ii) At or after the date of adoption of such a plan
of complete liquidation
and at or prior to the time of making of the final payment on the REMIC III
Certificates, the Class A-2FL Certificates, the Class A-MFL Certificates and the
Class A-JFL Certificates, the Trustee shall sell all of the assets of the Trust
for cash at the Termination Price; provided that if the Holders of the Class R-I
Certificates are purchasing the assets of the Trust, the amount to be paid by
such Holders may be paid net of the amount to be paid to such Holders as final
distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
REMIC III Certificates, the Class A-2FL Certificates, the Class A-MFL
Certificates and the Class A-JFL Certificates, the Paying Agent shall distribute
or credit, or cause to be distributed or credited, (A) to the Holders of the
Class R-I Certificates all assets of REMIC I remaining after such final payment
of the REMIC I Regular Interests, (B) to the Holders of the Class R-II
Certificates all assets of REMIC II remaining after such final payment of the
REMIC II Regular Interests and (C) to the Holders of the Class R-III
Certificates all remaining assets of REMIC III (in each case other than cash
retained to meet claims), and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests, REMIC Regular Certificates, Class A-2FL
Certificates, Class A-MFL Certificates, Class A-JFL Certificates, or the final
distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class
R-III Certificates, respectively, the Holders thereof hereby (i) authorize the
Trustee to take such action as may be necessary to adopt a plan of complete
liquidation of the REMIC Pool, and (ii) agree to take such other action as may
be necessary to adopt a plan of complete liquidation of the Trust upon the
written request of the Depositor, which authorization shall be binding upon all
successor Class R-I, Class R-II and Class R-III Certificateholders,
respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the
285
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate Registrar,
the Certificate Registrar will furnish or cause to be furnished to the Trustee
and the Paying Agent, within fifteen days after receipt by the Certificate
Registrar of a request by the Trustee or the Paying Agent, as the case may be,
in writing, a list, in such form as the Trustee or the Paying Agent, as the case
may be, may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer,
the Master Servicer, the Trustee or three or more Holders (hereinafter referred
to as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Paying Agent and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Paying Agent shall, within five Business Days after the
receipt of such application, send, at such Person's expense, the written
communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
286
(c) Every Holder, by receiving and holding a Certificate, agrees
with the Depositor, the Certificate Registrar, the Paying Agent, the Master
Servicer, the Special Servicer and the Trustee that neither the Depositor, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee, the Paying Agent or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
287
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool,
the Class A-2FL Grantor Trust, the Class A-MFL Grantor Trust, the Class A-JFL
Grantor Trust and the Excess Interest Grantor Trust, as applicable.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest payable thereon), such amounts with respect thereto
as shall from time to time be held in the Certificate Account, the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account, the Class A-JFL
Floating Rate Account and the Interest Reserve Account, the Reserve Account and
the Distribution Account (exclusive of the Excess Interest Sub-account), the
Insurance Policies and any related amounts in the REO Account and any related
REO Properties as a REMIC ("REMIC I") under the Code, other than any portion of
the foregoing amounts allocable to a B Note or Serviced Companion Mortgage Loan.
Such elections will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, the REMIC I Regular Interests shall each be
designated as a separate Class of "regular interests" in REMIC I and the Class
R-I Certificates shall be designated as the sole Class of "residual interests"
in REMIC I.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
("REMIC II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates, the Class A-2FL Regular Interest, the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest are issued. For purposes
of such election, the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-M, Class A-J, Class X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates and the Class A-2FL Regular Interest,
the Class A-MFL Regular Interest and the Class A-JFL Regular Interest shall be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole Class of "residual interests" in
REMIC III.
The Trustee and the Paying Agent shall not permit the creation of
any "interests" (within the meaning of Section 860G of the Code) in any of the
REMIC Pools other than the
288
REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular
Certificates, the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest, the Class A-JFL Regular Interest and the Residual Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related expenses
(not including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master Servicer.
The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool
and shall designate an appropriate Person to respond to inquiries by or on
behalf of Certificateholders for original issue discount and related information
in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file, or cause to be
prepared and filed, all of each REMIC Pool's federal and state income or
franchise tax and information returns as such REMIC Pool's direct
representative, and the Trustee shall sign such returns; the expenses of
preparing and filing such returns shall be borne by the Paying Agent, except
that if additional state tax returns are required to be filed in more than three
states, the Paying Agent shall be entitled, with respect to any such additional
filings, to (i) be paid a reasonable fee and (ii) receive its reasonable costs
and expenses, both as amounts reimbursable pursuant to Section 5.2(a)(vi)
hereof. The Depositor, the Master Servicer and the Special Servicer shall
provide on a timely basis to the Paying Agent or its designee such information
with respect to the Trust or any REMIC Pool as is in its possession, which the
Depositor or the Master Servicer and the Special Servicer has received or
prepared by virtue of its role as Depositor or Master Servicer and the Special
Servicer hereunder and reasonably requested by the Paying Agent to enable it to
perform its obligations under this subsection, and the Paying Agent shall be
entitled to conclusively rely on such information in the performance of its
obligations hereunder. The Depositor shall indemnify the Trust, the Trustee and
the Paying Agent for any liability or assessment against any of them or cost or
expense (including attorneys' fees) incurred by them resulting from any error
resulting from bad faith, negligence, or willful malfeasance of the Depositor in
providing any information for which the Depositor is responsible for preparing.
The Master Servicer and the Special Servicer shall indemnify the Trustee, the
Paying Agent and the Depositor for any liability or assessment against the
Trustee, the Depositor, the Paying Agent or any REMIC Pool and any expenses
incurred in connection with such liability or assessment (including attorneys'
fees) resulting from any error in any of such tax or information returns
resulting from errors in the information provided by the Master Servicer or the
Special Servicer, as the case may be, or caused by the negligence, willful
misconduct or bad faith of the Master Servicer or the Special Servicer, as the
case may be. The Paying Agent shall indemnify the Master Servicer, the Special
289
Servicer, the Depositor or any REMIC Pool for any expense incurred by the Master
Servicer, the Special Servicer, the Depositor and any REMIC Pool resulting from
any error in any of such tax or information returns resulting from errors in the
preparation of such returns caused by the negligence, willful misconduct or bad
faith of the Paying Agent. Each indemnified party shall immediately notify the
indemnifying party or parties of the existence of a claim for indemnification
under this Section 12.1(e), and provide the indemnifying party or parties, at
the expense of such indemnifying party or parties, an opportunity to contest the
tax or assessment or expense giving rise to such claim, provided that the
failure to give such notification rights shall not affect the indemnification
rights in favor of any REMIC Pool under this Section 12.1(e). Any such
indemnification shall survive the resignation or termination of the Master
Servicer, the Paying Agent or the Special Servicer, or the termination of this
Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, the Paying Agent shall provide (i) to the Internal
Revenue Service or other Persons (including, but not limited to, the Transferor
of a Residual Certificate, to a Disqualified Organization or to an agent that
has acquired a Residual Certificate on behalf of a Disqualified Organization)
such information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The Paying Agent
will make available to any Certificateholder any tax related information
required to be made available to Certificateholders pursuant to the Code and any
regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the Tax Matters Person for REMIC I
in the case of the Class R-I Certificates, REMIC II in the case of the Class
R-II Certificates and REMIC III in the case of the Class R-III Certificates. The
duties of the Tax Matters Person for each of the REMIC Pools are hereby
delegated to the Paying Agent and each Residual Certificateholder, by acceptance
of its Residual Certificate, agrees, on behalf of itself and all successor
holders of such Residual Certificate, to such delegation to the Paying Agent as
their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such
290
documents and designation of a Tax Matters Person, including the designation of
such Residual Certificateholder. The Paying Agent shall not be required to
expend or risk its own funds or otherwise incur any other financial liability in
the performance of its duties hereunder or in the exercise of any of its rights
or powers (except to the extent of the ordinary expenses of performing its
duties under this Agreement), if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Paying Agent, the Master Servicer and the Special Servicer,
within the scope of its express duties, and shall each act in accordance with
this Agreement and the REMIC Provisions in order to create and maintain the
status of each REMIC Pool as a REMIC each of the Class A-2FL Grantor Trust, the
Class A-MFL Grantor Trust, the Class A-JFL Grantor Trust and the Excess Interest
Grantor Trust as a grantor trust or, as appropriate, adopt a plan of complete
liquidation with respect to each REMIC Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the
Special Servicer, and the Holders of Residual Certificates shall not take any
action or fail to take any action or cause any REMIC Pool to take any action or
fail to take any action if any of such persons knows or could, upon the exercise
of reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of any REMIC Pool as
a REMIC (ii) result in the imposition of a tax upon any REMIC Pool (including
but not limited to the tax on prohibited transactions as defined in Code Section
860F(a)(2)) or (iii) endanger the status of the Class A-2FL Grantor Trust, the
Class A-MFL Grantor Trust, the Class A-JFL Grantor Trust or the Excess Interest
Grantor Trust as a grantor trust unless the Trustee and the Paying Agent have
received an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such a tax. Any action required under this
section which would result in an unusual or unexpected expense shall be
undertaken at the expense of the party seeking the Trustee, or the Holders of
the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on any REMIC Pool,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to any REMIC Pool after the Startup Day pursuant to Section 860G(d) of the Code,
and any other tax imposed by the Code or any applicable provisions of state or
local tax laws (other than any tax permitted to be incurred by the Special
Servicer pursuant to Section 9.14(e)), such tax, together with all incidental
costs and expenses (including, without limitation, penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Paying Agent, if such
tax arises out of or results from a breach of any of its obligations under this
Agreement; (ii) the Special Servicer, if such tax arises out of or results from
a breach by the Special Servicer of any of its obligations under this Agreement,
which breach constitutes negligence, willful misconduct or bad faith; (iii) the
Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under this Agreement; and (iv) the
Trust in all other instances. Any tax permitted to be incurred by the Special
Servicer pursuant to Section 9.14(e) shall be charged to and paid by the Trust
from the net income generated on the
291
related REO Property. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Paying Agent out of amounts on deposit in the Distribution
Account.
(l) The Paying Agent and, to the extent that books and records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis. Notwithstanding anything to the
contrary contained herein, except to the extent provided otherwise in the
Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans
shall, for federal income tax purposes, be allocated first to interest due and
payable on the Mortgage Loans (including interest on overdue interest, other
than additional interest at a penalty rate payable following a default). The
books and records must be sufficient concerning the nature and amount of each
REMIC Pool's investments to show that such REMIC Pool has complied with the
REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer nor
the Special Servicer shall enter into any arrangement by which any REMIC Pool
will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties as
set forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten (10) days after the Closing Date all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes on
the valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Certificates, as applicable, and the projected cash flows of the
Mortgage Loans. Thereafter, the Depositor shall provide to the Paying Agent or
its designee, promptly upon request therefor, any such additional information or
data within the Depositor's possession or knowledge that the Paying Agent may,
from time to time, reasonably request in order to enable the Paying Agent to
perform its duties as set forth herein. The Paying Agent is hereby directed to
use any and all such information or data provided by the Depositor in the
preparation of all federal and state income or franchise tax and information
returns and reports for each REMIC Pool to Certificateholders as required
herein. The Depositor hereby indemnifies the Trustee, the Paying Agent and each
REMIC Pool for any losses, liabilities, damages, claims, expenses (including
attorneys' fees) or assessments against the Trustee, the Paying Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the methodology employed by the Paying Agent) on a
timely basis and such indemnification shall survive the termination of this
Agreement and the termination or resignation of the Paying Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its reasonable best efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to
292
be disclosed or is disclosed (i) to independent auditors and accountants,
counsel and other professional advisers of the Paying Agent and its parent, or
(ii) in connection with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master
Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
REMIC Pool as "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" for each Class of
Certificates representing a regular interest in REMIC III, for the Class A-2FL
Regular Interest, for the Class A-MFL Regular Interest, for the Class A-JFL
Regular Interest, for each Class of REMIC I Regular Interests and for each Class
of REMIC II Regular Interests is the Rated Final Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall
permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the regular interests therein, (B)
affect the distribution of interest or principal on the Certificates, (C) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (D) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Paying
Agent, the Master Servicer nor the Special Servicer shall permit any
modification of a Money Term of a Mortgage Loan or the uncrossing of any
cross-collateralized Mortgage Loan (including in connection with the transfer of
any Mortgaged Property), in either case that is not in default or as to which
default is not reasonably foreseeable unless (i) the Trustee, the Special
Servicer, the Paying Agent and the Master Servicer have received a
Nondisqualification Opinion or a ruling from the Internal Revenue Service (at
the expense of the party making the request that the Master Servicer or the
Special Servicer modify the Mortgage Loan or a Specially Serviced Mortgage Loan)
to the effect that such modification would not be treated as an exchange
pursuant to Section 1001 of the Code (or, if it would be so treated, would not
be treated as a "significant modification" for purposes of Section 1.860G-2(b)
of the Treasury Regulations) or (ii) such modification meets the requirements
set forth in Sections 8.18 or 9.5.
293
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF
REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by either the Trustee or
the Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 CLASS A-2FL GRANTOR TRUST, CLASS A-MFL GRANTOR
TRUST, CLASS A-JFL GRANTOR TRUST AND EXCESS INTEREST GRANTOR TRUST.
(a) The assets of the Class A-2FL Grantor Trust, consisting of the
Class A-2FL Regular Interest, the Class A-2FL Swap Contract and the proceeds
thereof in the Class A-2FL Floating Rate Account, shall be held by the Paying
Agent for the benefit of the Holders of the undivided beneficial interest in the
Class A-2FL Grantor Trust, represented by the Class A-2FL Certificates, which
Class A-2FL Certificates, in the aggregate, will evidence 100% beneficial
ownership of such assets from and after the Closing Date. The assets of the
Class A-MFL Grantor Trust, consisting of the Class A-MFL Regular Interest, the
Class A-MFL Swap Contract and the proceeds thereof in the Class A-MFL Floating
Rate Account, shall be held by the Paying Agent for the benefit of the Holders
of the undivided beneficial interest in the Class A-MFL Grantor Trust,
represented by the Class A-MFL Certificates, which Class A-MFL Certificates, in
the aggregate, will evidence 100% beneficial ownership of such assets from and
after the Closing Date. The assets of the Class A-JFL Grantor Trust, consisting
of the Class A-JFL Regular Interest, the Class A-JFL Swap Contract and the
proceeds thereof in the Class A-JFL Floating Rate Account, shall be held by the
Paying Agent for the benefit of the Holders of the undivided beneficial interest
in the Class A-JFL Grantor Trust, represented by the Class A-JFL Certificates,
which Class A-JFL Certificates, in the aggregate, will evidence 100% beneficial
ownership of such assets from and after the Closing Date. The assets of the
Excess Interest Grantor Trust, consisting of the right to any Excess Interest in
respect of the ARD Loans and the Excess Interest Sub-account, shall be held by
the Paying Agent for the benefit of the Holders of the Class T Certificates,
which Class T Certificates, in the aggregate, will evidence 100% beneficial
ownership of such assets from and after the Closing Date. Under no circumstances
may the Paying Agent vary the assets of any Grantor Trust Pool so as to take
advantage of variations in the market so as to improve the rate of return of
Holders of the Class A-2FL, Class A-MFL, Class A-JFL, Class A-MFL or Class T
Certificates. The Paying Agent
294
shall be deemed to hold and shall account for each Grantor Trust Pool separate
and apart from each other and from the assets of REMIC I, REMIC II and REMIC III
created hereunder.
(b) (i) The parties intend that the portions of the Trust
consisting of a Grantor Trust Pool shall each constitute, and that the affairs
of the Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify
such portion as, a "grantor trust" under the Code, and the provisions hereof
shall be interpreted consistently with this intention. In furtherance of such
intention, the Paying Agent shall furnish or cause to be furnished to the Class
A-2FL Certificateholders, the Class A-MFL Certificateholders, the Class A-JFL
Certificateholders and the Class T Certificateholders and shall file, or cause
to be filed with the Internal Revenue Service, together with Form 1041 (or, in
the event a Grantor Trust Pool is a WHFIT, information will be provided on Form
1099) or such other form as may be applicable, at the time and in the manner
required by the Code, indicating their respective shares of income and
deductions with respect to such grantor trusts, as such amounts accrue or are
received, as the case may be.
(ii) Each of the Class A-2FL Grantor Trust, the Class A-MFL Grantor
Trust, and the Class A-JFL Grantor Trust is a WHFIT that is a NMWHFIT, and the
Excess Interest Grantor Trust is a WHFIT that is a WHMT. The Paying Agent will
report as required under the WHFIT Regulations to the extent such information
reasonably necessary to enable the Paying Agent to do so is provided to the
Paying Agent on a timely basis. The Paying Agent 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 Paying Agent with the
identities of other "middlemen" that are Certificateholders. The Paying Agent
shall be entitled to rely on the first sentence of this paragraph and shall be
entitled to indemnification in accordance with the terms of this Agreement in
the event that the Internal Revenue Service makes a determination that the first
sentence of this paragraph is incorrect.
(iii) The Paying Agent, in its discretion, shall report required
WHFIT information using either the cash or accrual method, except to the extent
the WHFIT Regulations specifically require a different method. The Paying Agent
shall be under no obligation to determine whether any Certificateholder uses the
cash or accrual method. The Paying Agent shall make available WHFIT information
to Certificateholders annually. In addition, the Paying Agent shall not be
responsible or liable for providing subsequently amended, revised or updated
information to any Certificateholder, unless requested by the Certificateholder.
(iv) The Paying Agent shall not be liable for failure to meet the
reporting requirements of the WHFIT Regulations nor for any penalties thereunder
if such failure is due to: (i) the lack of reasonably necessary information
being provided to the Paying Agent, (ii) incomplete, inaccurate or untimely
information being provided to the Paying Agent, or (iii) the inability of the
Paying Agent, after good faith efforts, to alter its existing information
reporting systems to capture information necessary to fully comply with the
WHFIT Regulations for the 2007 calendar year. Each owner of a class of
securities representing, in whole or in part, beneficial ownership of an
interest in a WHFIT, by acceptance of its interest in such class of securities,
will be deemed to have agreed to provide the Paying Agent with information
regarding any sale of such securities, including the price, amount of proceeds
and date of sale. Absent receipt of information regarding any sale of
Certificates, including the price, amount of
295
proceeds and date of sale from the beneficial owner thereof or the Depositor,
the Paying Agent shall assume there is no secondary market trading of WHFIT
interests.
(v) To the extent required by the WHFIT Regulations, the Paying
Agent shall use reasonable efforts to publish on an appropriate website the
CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so
published will represent the Rule 144A CUSIPs. The Paying Agent shall make
reasonable good faith efforts to keep the website accurate and updated to the
extent CUSIPs have been received. Absent the receipt of a CUSIP, the Paying
Agent will use a reasonable identifier number in lieu of a CUSIP. The Paying
Agent shall not be liable for investor reporting delays that result from the
receipt of inaccurate or untimely CUSIP information.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
SECTION 13.1 INTENT OF THE PARTIES; REASONABLENESS.
Except with respect to Section 13.9, Section 13.10 and Section
13.11, the parties hereto acknowledge and agree that the purpose of Article XIII
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Depositor nor the Paying Agent shall exercise its rights to request
delivery of information or other performance under these provisions other than
reasonably and in good faith, or (except with respect to Section 13.9, Section
13.10 or Section 13.11) for purposes other than compliance with the Securities
Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff, or
otherwise, and agree to comply with requests made by the Depositor or the Paying
Agent in good faith for delivery of information under these provisions on the
basis of evolving interpretations of the requirements of Regulation AB. In
connection with the Subject Securitization Transaction, each of the Master
Servicer, the Special Servicer, any Primary Servicer, the Trustee and the Paying
Agent shall, upon reasonable advance notice, cooperate fully with the Depositor
and the Paying Agent, as applicable, to deliver or make available to the
Depositor or the Paying Agent, as applicable (including any of their assignees
or designees), any and all statements, reports, certifications, records and any
other information in its possession and necessary in the good faith
determination of the Depositor or the Paying Agent, as applicable, to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosure relating to the Master Servicer, the Special Servicer, any Primary
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 or
the Paying Agent, as applicable, to be necessary in order to effect such
compliance. None of the Master Servicer, any Primary Servicer, the Trustee or
the Special Servicer are responsible for filing any Exchange Act report with the
Commission.
296
SECTION 13.2 INFORMATION TO BE PROVIDED BY THE MASTER SERVICER, THE
SPECIAL SERVICER, ANY PRIMARY SERVICER AND THE PAYING AGENT.
(a) For so long as the Trust, and with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, such
Other Securitization, is subject to the reporting requirements of the Exchange
Act, the Master Servicer, the Special Servicer, any Primary Servicer, the
Trustee and the Paying Agent shall (and each of the Master Servicer, the Special
Servicer, any Primary Servicer, the Trustee and the Paying Agent, as applicable,
shall (a) use reasonable efforts to cause each Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Sub-Servicer (other than any party to this Agreement) with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to) (i) notify the Depositor, or the depositor in the Other
Securitization with respect to the related Serviced Companion Mortgage Loan, in
writing of (A) any litigation or governmental proceedings pending against the
Master Servicer, the Special Servicer, any Primary Servicer, the Trustee, the
Paying Agent or such Sub-Servicer, as the case may be, or with respect to any of
its property, that, in each such case, would be material to Certificateholders
and (B) any affiliations of the type described in Item 1119(a) of Regulation AB
or relationships of the type described in Item 1119(a) of Regulation AB that
develop following the Closing Date between the Master Servicer, the Special
Servicer, any Primary Servicer, the Trustee or the Paying Agent (or, if
applicable, any Sub-Servicer) (and any other parties identified in writing by
the requesting party), on the one hand, and any other such party on the other,
as the case may be, as such affiliation or relationship relates to the Xxxxxx
Xxxxxxx Capital I Inc., Series 2007-HQ12 transaction (or an Other
Securitization, if applicable), and (ii) provide to the Depositor a description
of such legal proceedings, affiliations or relationships, in each case, in a
form that would enable the Depositor to satisfy its reporting obligations under
Item 1117 or 1119 of Regulation AB, as applicable.
(b) In connection with the succession to the Master Servicer, the
Special Servicer, any Primary Servicer, any Additional Servicer, any
Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any
Person (i) into which the Master Servicer, the Special Servicer, any Primary
Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case
may be, may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer, the Special Servicer, any Primary Servicer,
any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be,
the Master Servicer, the Special Servicer, any Primary Servicer, any Additional
Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each
of the Master Servicer, the Special Servicer, any Primary Servicer or the
Trustee, as applicable, shall (a) use reasonable efforts to cause each
Additional Servicer and each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to) provide to the Depositor,
at least 15 calendar days prior to the effective date of such succession or
appointment, as long as such disclosure prior to such effective date would not
be violative of any applicable law or confidentiality agreement, otherwise no
later than the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor
297
so that it may comply with its reporting obligation under Item 6.02 of Form 8-K
as it relates to the Servicing Function with respect to any class of
Certificates.
(c) With respect to any Serviced Companion Mortgage Loan that is
deposited into an Other Securitization, the Master Servicer, any Primary
Servicer (if applicable), the Special Servicer, the Trustee and the Paying Agent
will take all actions reasonably requested of it to enable such Other
Securitization to comply with Regulation AB. For the avoidance of doubt and
without limiting the foregoing, the Master Servicer, the Special Servicer, any
Primary Servicer, the Trustee and the Paying Agent will, if reasonably requested
by the depositor for such Other Securitization, provide disclosure (in
substantially the same form as the disclosure provided in the Prospectus
Supplement, to the extent necessary to comply with Regulation AB) regarding the
Master Servicer, any Primary Servicer, the Special Servicer, the Trustee and the
Paying Agent, respectively, as reasonably and in good faith determined by the
depositor in such Other Securitization to be required by Regulation AB for
inclusion in disclosure documents with respect to such Other Securitization,
together with (other than with respect to the Trustee) an opinion of counsel as
to the compliance of such disclosure with the requirements of Regulation AB and
indemnification substantially similar to that provided in the Subject
Securitization Transaction regarding damages incurred in connection with the
non-compliance with the requirements of Regulation AB relating to the disclosure
referred to in this sentence.
(d) Any other provision of this Article XIII to the contrary not
withstanding, including, without limitation, any time deadlines for delivery set
forth in this Article XIII, in connection with the requirements contained in
this Article XIII that provide for the delivery of information and other items
to, and the cooperation with, the depositor and the paying agent or trustee, as
applicable, of any securitization subject to Regulation AB involving any
Serviced Companion Mortgage Loan, no party hereunder shall be obligated to
provide any such items to or cooperate with such depositor or trustee or paying
agent (i) unless it is required to deliver corresponding information and other
items with respect to the Subject Securitization Transaction, (ii) until the
depositor or the trustee or the paying agent of such securitization has provided
each party hereto with not less than 30 days prior written notice (which shall
only be required to be delivered once) that such Other Securitization is subject
to Regulation AB and that the securitization is subject to Exchange Act
reporting, and (iii) specifying in reasonable detail the information and other
items requested to be delivered; provided, that, if Exchange Act reporting is
being requested, such depositor or trustee or paying agent is only required to
provide a single written notice to such effect. Any reasonable cost and expense
incurred by the Master Servicer, the Special Servicer, the Trustee or the Paying
Agent in cooperation with such depositor or trustee (or paying agent, as
applicable) as a result of providing any report, information or certification
that would not otherwise be required to be provided pursuant to the terms of
this Article XIII shall be the responsibility of the depositor or such other
securitization trust. The parties hereto shall have the right to confirm in good
faith with the depositor of such securitization as to whether Regulation AB
requires the delivery of the items identified in this Article XIII to the
depositor and trustee (or paying agent, as applicable) of the other
securitization prior to providing any of the reports or other information
required to be delivered under this Article XIII in connection therewith. Upon
such confirmation, the parties shall comply with the time deadlines for delivery
set forth in this Article XIII with respect to such Other Securitization. The
parties hereunder shall also have the right to require that such depositor
provide them with the contact details of the depositor, the trustee (or the
paying agent, as
298
applicable) and any other parties to the Other Pooling and Servicing Agreement
relating to such Other Securitization.
SECTION 13.3 FILING OBLIGATIONS.
The Master Servicer, the Special Servicer, any Primary Servicer, the
Paying Agent, the Trustee and each Sub-Servicer shall, and the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent, the Trustee and
each Sub-Servicer, as applicable, shall (a) use reasonable efforts to cause each
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to, reasonably cooperate with
the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act.
SECTION 13.4 FORM 10-D FILINGS. Within 15 calendar days after each
Distribution Date (the "10-D Filing Deadline") (subject to permitted extensions
under the Exchange Act), the 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 Monthly Certificateholder's Report attached thereto. Any
necessary disclosure in addition to the Monthly Certificateholder's Report that
is required to be included on Form 10-D ("Additional Form 10-D Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule XVI and directed to the Depositor and the Paying Agent for
approval by the Depositor. The Paying Agent will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure (other than such Additional Form 10-D Disclosure which is to be
reported by it as set forth on Schedule XVI) absent such reporting, direction
and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule XVI hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule XVI
shall be required to provide to the Depositor and the Paying Agent (or, with
respect to any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization), to
the extent a Servicing Officer or Responsible Officers, as the case may be,
thereof has actual knowledge (other than with respect to disclosure required
pursuant to Item 1117 or Item 1119 of Regulation AB as to such party which shall
be reported if actually known by a Servicing Officer or Responsible Officer, as
the case may be, or any lawyer in the in-house legal department of such party),
the form and substance of the corresponding Additional Form 10-D Disclosure set
forth on Schedule XVI, if applicable, and in form readily convertible to an
XXXXX-compatible form to the extent available to such party in such format, or
in such other form as otherwise agreed by the Depositor, the Paying Agent and
such party. Each Person set forth on Schedule XVI hereto shall include with such
Additional Form 10-D Disclosure an Additional Disclosure Notification in the
form attached hereto as Schedule XIX. The Paying Agent shall provide prompt
notice to the Depositor (or, with respect to a Serviced Companion Mortgage Loan
deposited into an Other Securitization, the depositor and the trustee in such
Other Securitization) to the extent the Paying Agent is notified of an event
reportable on Form 10-D for which it has not received the necessary Additional
Form 10-D Disclosure from such party. The Paying Agent shall have no duty under
this Agreement to monitor or enforce the performance by the parties
299
listed on Schedule XVI of their duties under this paragraph or proactively
solicit or procure from any such parties any Additional Form 10-D Disclosure
information. Unless otherwise directed by the Depositor, and subject to any
comments received to such disclosure from the Depositor by the 2nd calendar day
after such 5th calendar day after the related Distribution Date, the Paying
Agent shall include the form and substance of the Additional Form 10-D
Disclosure on the related Form 10-D. The Depositor will be responsible for any
reasonable fees charged and out-of-pocket expenses incurred by the Paying Agent
in connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph. Any notice delivered to the Paying Agent pursuant to
this paragraph shall be delivered by facsimile to (000) 000-0000 and by email to
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or such other address as may hereafter be
furnished by the Paying Agent to the other parties in writing.
On or prior to the close of business on the 11th calendar day (or if
such day is not a Business Day, the immediately preceding Business Day) after
the related Distribution Date the Paying Agent shall prepare and deliver
electronically the Form 10-D to the Depositor for review. No later than the end
of business on the 12th calendar day after the related Distribution Date, the
Depositor shall notify the Paying Agent in writing (which may be furnished
electronically) of any changes to such Form 10-D. No later than the end of
business on the 13th calendar day after the related Distribution Date, the
Depositor shall notify the Paying Agent in writing (which may be furnished
electronically) of its approval of such Form 10-D, and 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. 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 instructs the
Paying Agent, with respect to each Form 10-D, to check "yes" for each item
unless the Paying Agent has received prior written notice (which may be
furnished electronically) from the Depositor that the answer should be "no" for
an item which notice shall be delivered to the Paying Agent no later than the
end of business on the 13th calendar day after the related Distribution Date.
The Paying Agent shall (a) file such Form 10-D not later than 5:30 p.m. (New
York City time) on the 15th calendar day after the related Distribution Date or
(b) use commercially reasonable best efforts to file such Form 10-D, if the
Paying Agent received the signed Form 10-D after the signing deadline set forth
in Section 13.14, not later than 5:30 p.m. (New York City time) on the 15th
calendar day after the related Distribution Date; provided that if the Paying
Agent cannot file the Form 10-D prior to the deadline set forth in the
immediately preceding clause (b), the Paying Agent shall file such Form 10-D as
soon as possible thereafter. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Paying Agent will follow the
procedures set forth in Section 13.8(b). After filing with the Commission, the
Paying Agent shall promptly, pursuant to Section 5.4, make available on its
internet website a final executed copy of each Form 10-D prepared and filed by
the Paying Agent. The parties to this Agreement acknowledge (and each Additional
Servicer and each Servicing Function Participant shall be required to
acknowledge) that the performance by the Paying Agent of its duties under this
Section 13.4 related to the timely preparation and filing of Form 10-D is
contingent upon such parties (and, to the extent applicable, any Additional
Servicer or Servicing Function Participant) observing all applicable deadlines
in the performance of their duties under this Section 13.4. 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 or file
such Form 10-D where such
300
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 10-D, not resulting from its own
negligence, bad faith or willful misconduct. Any notices or draft Form 10-D
delivered to the Depositor pursuant to this Section 13.4 shall be delivered by
email to xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.xxx, or such other address as may
hereafter be furnished by the Depositor to the other parties in writing.
It is hereby acknowledged that, with respect to the Columbia Center
Mortgage Loan, the Columbia Center Significant Obligor is a "significant
obligor" with respect to the Trust representing more than 10% and less than 20%
of the aggregate initial Scheduled Principal Balance of the Mortgage Loans for
purposes of Regulation AB, and, accordingly, Item 6 of Form 10-D and and
Instruction J(2)(B) of Form 10-K provides for the inclusion of updated net
operating income of such "significant obligor" as required by Item 1112(b)(1) of
Regulation AB on each Form 10-D and on each Form 10-K, respectively, to be filed
by the Trust with respect to a Distribution Date immediately following the date
in which each financial statement of such "significant obligor" is required to
be delivered to the lender under the related Mortgage Loan Documents (which is
forty-five (45) days following the end of each calendar quarter (except for the
calendar quarter ending June 30, 2007, for which delivery will not be required
prior to September 1, 2007, and the last calendar quarter of each year, for
which delivery will not be required prior to March 1 of the following year) and
ninety (90) days following the end of each calendar year). If the related
Mortgage Loan is not a Non-Serviced Mortgage Loan and either it constitutes a
Specially Serviced Mortgage Loan or the related Mortgaged Property constitutes
an REO Property, the Special Servicer shall forward any financial statement that
it receives or causes to be prepared to the Master Servicer promptly after the
Special Servicer's receipt or preparation thereof. Whether or not the related
Mortgage Loan is a Non-Serviced Mortgage Loan, promptly following receipt of an
updated financial statement of such "significant obligor" (whether from the
related Mortgagor, the Non-Serviced Mortgage Loan Master Servicer or
Non-Serviced Mortgage Loan Special Servicer under the Non-Serviced Mortgage Loan
Pooling and Servicing Agreement or the Special Servicer under this Agreement),
the Master Servicer shall update the following columns of the CMSA Loan Periodic
Update File for the applicable Distribution Date: columns BB, BP, BT and BU
(corresponding to fields 54--"Preceding Fiscal Year NOI", 68--"Most Recent NOI",
72--"Most Recent Financial As of Start Date" and 73--"Most Recent Financial As
of End Date"), as such column references and field numbers may change from time
to time. If the related Mortgage Loan is not a Non-Serviced Mortgage Loan and
the Master Servicer does not receive a financial statement of such "significant
obligor" within ten Business Days after the date such financial statement is
required or would have been required to be delivered under the related Mortgage
Loan Documents:
(i) the Master Servicer shall notify the Depositor (and either (x)
if such Mortgage Loan is a Specially Serviced Mortgage Loan, the applicable
Special Servicer hereunder, or (y) in the case of a Non-Serviced Mortgage Loan,
the applicable Non-Serviced Mortgage Loan Master Servicer under the Non-Serviced
Mortgage Loan Pooling and Servicing Agreement) that it has not received such
financial statement; and
(ii) 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) to continue to attempt to
obtain such financial statement from the related Mortgagor (if such Mortgage
Loan is not a Non-Serviced Mortgage Loan or a Specially Serviced Mortgage Loan),
the related Non-Serviced Mortgage Loan Master Servicer (if such Mortgage Loan is
a Non-Serviced Mortgage Loan) or the Special Servicer (if such Mortgage loan is
a Specially Serviced
301
Mortgage Loan).
In such circumstances, the Master Servicer shall retain written
evidence of each instance in which it attempts to contact the related Person to
obtain the required financial statement 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 with respect to such attempts to the Paying Agent and the Depositor.
The Officer's Certificate should be addressed to the Paying Agent 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.
If the Paying Agent 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, by the end of the third calendar day in respect of Form 10-D
and by the close of business on the third Business Day in respect of Form 10-K,
in each case prior to the applicable filing deadline, the Paying Agent 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."
SECTION 13.5 FORM 10-K FILINGS.
On or prior to 5:30 p.m. (New York City time) on the 90th calendar
day after the end of each fiscal year of the Trust or such earlier date as may
be required by the Exchange Act (the "10-K Filing Deadline") (it being
understood that the fiscal year for the Trust ends on December 31st of each
year), commencing in March 2008, the 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 each Reporting Servicer, as set forth under Section 13.9, (ii)(A)
the annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as set forth under Section 13.10, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
under Section 13.10 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
under Section 13.10 is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation as to why such report is not
included, (iii)(A) the registered public accounting firm attestation report for
each Reporting Servicer, as set forth under Section 13.11, and (B) if any
registered public accounting firm attestation report described under Section
13.11 identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting firm
attestation report is not
302
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation as to why such report is not included, and (iv) a
Xxxxxxxx-Xxxxx Certification as set forth in Section 13.6. Any disclosure or
information in addition to (i) through (iv) above that is required to be
included on Form 10-K ("Additional Form 10-K Disclosure") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule
XVII and directed to the Depositor and the Paying Agent for approval by the
Depositor (except that, for the avoidance of doubt, the delivery of
Xxxxxxxx-Xxxxx back-up certifications, annual compliance statements, annual
reports on assessment of compliance with servicing criteria and annual
independent public accountants' servicing reports shall be governed by Sections
13.6, 13.9, 13.10 and 13.11, as applicable). The Paying Agent will have no duty
or liability for any failure hereunder to determine or prepare any Additional
Form 10-K Disclosure (other than such Additional Form 10-K Disclosure which is
to be reported by it as set forth on Schedule XVII) absent such reporting,
direction and approval.
For so long as the Trust, and, with respect to any Serviced
Companion Mortgage Loan, the trust in the related Other Securitization, are
subject to the reporting requirements of the Exchange Act, no later than March
7th of each year subsequent to the fiscal year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2008, each Person identified
on Schedule XVII shall be required to provide to the Depositor (or, with respect
to any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization) and
the Paying Agent, to the extent a Servicing Officer or Responsible Officers, as
the case may be, thereof has actual knowledge (other than with respect to
disclosure required pursuant to Item 1117 or Item 1119 of Regulation AB as to
such party which shall be reported if actually known by a Servicing Officer or
Responsible Officer, as the case may be, or any lawyer in the in-house legal
department of such party), the form and substance of the corresponding
Additional Form 10-K Disclosure as set forth on Schedule XVII, if applicable,
and in a form that is readily convertible to an XXXXX-compatible form (to the
extent available to such party in such format), or in such other form as
otherwise agreed by the Depositor, the Paying Agent and such Person. Each Person
set forth on Schedule XVII hereto shall include with such Additional Form 10-K
Disclosure an Additional Disclosure Notification in the form attached hereto as
Schedule XIX. The Paying Agent shall, at any time prior to filing the related
Form 10-K, provide prompt notice to the Depositor to the extent the Paying Agent
is notified of an event reportable on Form 10-K for which it has not received
the necessary Additional Form 10-K Disclosure from such party. The Paying Agent
has no duty under this Agreement to monitor or enforce the performance by the
parties listed on Schedule XVII of their duties under this paragraph or to
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. Unless otherwise directed by the Depositor, and subject
to any comments received to such disclosure from the Depositor by March 15th,
the Paying Agent shall include the form and substance of the Additional Form
10-K Disclosure on the related Form 10-K. The Depositor will be responsible for
any reasonable fees charged and out-of-pocket expenses incurred by the Paying
Agent in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph. Any notice delivered to the Paying Agent
pursuant to this paragraph shall be delivered by facsimile to (000) 000-0000 and
by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may
hereafter be furnished by the Paying Agent to the other parties in writing.
On or prior to the end of business on March 23rd (or if such day is
not a Business Day the immediately preceding Business Day), the Paying Agent
shall prepare and deliver electronically a draft copy of the Form 10-K to the
Depositor for review. No later than 5:00 p.m.
303
(New York City time) on the 3rd Business Day prior to the 10-K Filing Deadline,
a senior officer in charge of securitization of the Depositor shall sign the
Form 10-K 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.
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 instructs the
Paying Agent, with respect to each Form 10-K, to check "yes" for each item
unless the Paying Agent has received prior written notice (which may be
furnished electronically) from the Depositor that the answer should be "no" for
an item which notice shall be delivered to the Paying Agent no later than 5:00
p.m. (New York City time) on the 3rd Business Day prior to the 10-K Filing
Deadline. The Paying Agent shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-K. 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
will follow the procedures set forth in Section 13.8(b). After filing with the
Commission, the Paying Agent shall, pursuant to Section 5.4, make available on
its internet website a final executed copy of each Form 10-K prepared and filed
by the Paying Agent. The signing party at the Depositor can be contacted at the
address identified in Section 14.5. The parties to this Agreement acknowledge
(and each Additional Servicer and each Servicing Function Participant shall be
required to acknowledge) that the performance by the Paying Agent of its duties
under this Section 13.5 related to the timely preparation and filing of Form
10-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Servicing Function Participant) observing all applicable
deadlines in the performance of their duties under this Article XIII. The Paying
Agent shall have no liability with respect to any failure to properly prepare,
arrange for execution or file such Form 10-K resulting 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 10-K on
a timely basis, not resulting from its own negligence, bad faith or willful
misconduct. Any notices or draft Form 10-K delivered to the Depositor pursuant
to this Section 13.5 shall be delivered by email to
xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Depositor to the other parties in writing.
If a Form 10-K is permitted to be filed notwithstanding any missing
information for inclusion therein, the Paying Agent shall nonetheless file such
Form 10-K and, if Regulation AB (or Form 10-K itself) permits the inclusion of
an explanation why such information is missing, the Paying Agent shall include
such explanation of the circumstances (such explanation to be based solely on
such notice regarding the same as may have been delivered to the Paying Agent by
the person responsible for the missing information).
SECTION 13.6 XXXXXXXX-XXXXX CERTIFICATION.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit CC attached hereto, required to
be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Servicing Function Participant (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Servicing Function Participant (other than any party to this Agreement) with
which it has entered into a
304
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person"), by noon (New York City time) on March 15th (with no grace
period) of each year subsequent to the fiscal year in which the Trust is subject
to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (each, a "Performance
Certification"), in the form attached hereto as Exhibit CC-1, upon which the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity's officers, directors and Affiliates (collectively with
the Certifying Person, "Certification Parties") can reasonably rely. The senior
officer in charge of securitization of the Depositor shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying Person
can be contacted at the address identified in Section 14.5. If any Reporting
Servicer is terminated or resigns pursuant to the terms of this Agreement, or
any applicable sub-servicing agreement or primary servicing agreement, as the
case may be, such Reporting Servicer shall provide a Performance Certification
and a reliance certificate to the Certifying Person pursuant to this Section
13.6 with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 13.9, (ii) annual report on
assessment of compliance with Servicing Criteria provided pursuant to Section
13.10 and (iii) registered public accounting firm attestation report provided
pursuant to Section 13.11 and shall include a certification that each such
annual report on assessment of compliance discloses any material instances of
noncompliance described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the attestation provided for in
Section 13.11.
If any Serviced Companion Mortgage Loan is deposited into an Other
Securitization, and the applicable Reporting Servicer is provided with contact
information therefor, such Reporting Servicer shall provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification with respect to an Other Securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to the related Serviced
Companion Mortgage Loan), upon which such certifying person, the entity for
which the certifying person acts as an officer, and such entity's officers,
directors and Affiliates can reasonably rely. With respect to any Non-Serviced
Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling and Servicing
Agreement, the Master Servicer will use its reasonable efforts to procure a
Xxxxxxxx-Xxxxx back-up certification from the Non-Serviced Mortgage Loan Master
Servicer, Non-Serviced Mortgage Loan Special Servicer, Non-Servicer Mortgage
Loan Paying Agent and the Non-Serviced Mortgage Loan Trustee in form and
substance similar to a Performance Certification or in the form specified in the
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer
shall promptly forward to the Paying Agent and the Depositor any such
Xxxxxxxx-Xxxxx back-up certification received by the Master Servicer.
Notwithstanding the foregoing, without limiting the requirements of
the Exchange Act, nothing in this Section shall require any Reporting Servicer
(i) to certify or verify the accurateness or completeness of any information
provided to such Reporting Services by third parties (other than a Sub-Servicer
of Additional Servicer retained by it, except for Seller Sub-Servicers with
respect to the Master Servicer or Special Servicer, as applicable), (ii) to
certify
305
information other than to such Reporting Servicer's knowledge and in accordance
with such Reporting Servicer's responsibilities hereunder or (iii) with respect
to completeness of information and reports, to certify anything other than that
all fields of information called for in written reports prepared by such
Reporting Servicer have been completed except as they have been left blank on
their face.
SECTION 13.7 FORM 8-K FILINGS.
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), the 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 paragraph immediately below, be reported by
any party set forth on Schedule XVIII to which such Reportable Event relates and
such Form 8-K Disclosure Information shall be directed to the Depositor and the
Paying Agent for approval by the Depositor. The Paying Agent will have no duty
or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information (other than such Form 8-K Disclosure Information which is
to be reported by it as set forth on Schedule XVIII) absent such reporting,
direction and approval.
As set forth on Schedule XVIII hereto, for so long as the Trust,
and, with respect to any Serviced Companion Mortgage Loan, the trust in the
related Other Securitization, are subject to the Exchange Act reporting
requirements, no later than noon (New York City time) on the 2nd Business Day
after the occurrence of a Reportable Event the applicable Person identified on
such Schedule XVIII shall to the extent a Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge, be required to
provide written notice to the Depositor (or with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, the
depositor and the trustee in such Other Securitization) and the Paying Agent of,
such Reportable Event in form and substance of the corresponding Form 8-K
Disclosure Information, as set forth on Schedule XVIII, if applicable, and in a
form that is readily convertible to an XXXXX-compatible form (to the extent
available to such party in such format), or in such other form as otherwise
agreed by the Depositor, the Paying Agent and such Party. Each Person set forth
on Schedule XVIII hereto shall include with such Form 8-K Disclosure Information
an Additional Disclosure Notification in the form attached hereto as Schedule
XVIII. Unless otherwise directed by the Depositor, and subject to any comments
received to such disclosure from the Depositor by the close of business on the
2nd Business Day after such Reportable Event, the Paying Agent shall include the
form and substance of the Form 8-K Disclosure Information on the related Form
8-K. The Depositor will be responsible for any reasonable fees charged and
out-of-pocket expenses incurred by the Paying Agent in connection with including
any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Any
notice delivered to the Paying Agent pursuant to this paragraph shall be
delivered by facsimile to (000) 000-0000 and by email to
xxx.xxx.xxxxxxxxxxxx@xxxxxxxxxx.xxx or such other address as may hereafter be
furnished by the Paying Agent to the other parties in writing.
No later than noon (New York City time) on the 3rd Business Day
after the Reportable Event, the Paying Agent shall prepare the Form 8-K. No
later than the end of business on the 3rd Business Day after the Reportable
Event, the Depositor (or with respect to
306
any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor in such Other Securitization) shall sign the Form
8-K. If so directed by the Depositor, the Paying Agent shall (a) file such Form
8-K, upon signature thereof as provided in Section 13.14, not later than 5:30
p.m. (New York City time) on the 4th Business Day after the related Reportable
Event or (b) use reasonable best efforts to file such Form 8-K, if the Paying
Agent received the signed Form 8-K after the end of business on the 3rd Business
Day after the Reportable Event, not later than 5:30 pm (New York City time) on
the 4th Business Day after the related Reportable Event; provided that, if the
Paying Agent cannot file the Form 8-K prior to the deadline set forth in the
immediately preceding clause (b), the Paying Agent shall file such Form 8-K as
soon as possible thereafter. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Paying Agent will follow the
procedures set forth in Section 13.8(b). After filing with the Commission, the
Paying Agent will, pursuant to Section 5.4, make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the Paying
Agent. The parties to this Agreement acknowledge (and each Additional Servicer
and each Servicing Function Participant shall be required to acknowledge) that
the performance by the Paying Agent of its duties under this Section 13.7
related to the timely preparation and filing of Form 8-K is contingent upon such
parties (and, to the extent applicable, any Additional Servicer or Servicing
Function Participant) observing all applicable deadlines in the performance of
their duties under this Section 13.7. 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 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 any other party hereto needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct; provided, however, that the Paying Agent shall
prepare, arrange for execution and file such Form 8-K where such information
from such other party is not received on a timely basis or not provided by such
other party. Any notices or draft Form 8-K delivered to the Depositor pursuant
to this Section 13.7 shall be delivered by email to
xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Depositor to the other parties in writing.
Notwithstanding the second preceding paragraph, the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent, the Trustee, each
Sub-Servicer and each Servicing Function Participant, shall promptly notify (and
the Master Servicer, the Special Servicer, any Primary Servicer, the Paying
Agent, the Trustee each Sub-Servicer and each Servicing Function Participant
shall (a) use reasonable efforts to cause each Sub-Servicer and each Servicing
Function Participant (other than any party to this Agreement) with which it has
entered into a servicing relationship on or prior to the Closing Date with
respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing
Function Participant (other than any party to this Agreement) with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to promptly notify) the Depositor and the Paying Agent, but in
no event later than noon on the 2nd Business Day after its occurrence, of any
Reportable Event of which it has actual knowledge to the extent such party is
identified as a "Responsible Party" on Schedule XVIII with regard to such
Reportable Event.
SECTION 13.8 FORM 15 FILING; INCOMPLETE EXCHANGE ACT FILINGS;
AMENDMENTS TO EXCHANGE ACT REPORTS.
307
(a) On or before 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. After the filing of
Form 15, the obligations of the parties to this Agreement under Sections 13.1,
13.2, 13.3, 13.4, 13.5 and 13.7 shall be suspended for so long as neither the
Trust nor, with respect to any Serviced Companion Mortgage Loan, the trust in
the related Other Securitization, is subject to the reporting requirements of
the Exchange Act. The Paying Agent shall provide each Reporting Servicer with
notice (which notice may be sent via facsimile or by email) if the Paying Agent
does not file such Form 15 Suspension Notification pursuant to this Section
13.8(a).
(b) The Paying Agent shall promptly notify the Depositor (which
notice may be sent by facsimile or by email and which shall include the identity
of those Reporting Servicers who did not deliver such information) and each
Reporting Servicer that failed to deliver such information required to be
delivered by it under this Agreement, if all, or any portion of, any required
disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K
required to be filed pursuant to this Agreement is not delivered to it within
the delivery deadlines set forth in this Agreement (including annual compliance
statements pursuant to Section 13.9, annual reports on assessment of compliance
with servicing criteria pursuant to Section 13.10 and attestation reports
pursuant to Section 13.11). If the Paying Agent is unable to timely file with
the Commission all or any required portion of any Form 8-K, Form 10-D or Form
10-K required to be filed by this Agreement because required disclosure
information either was not delivered to it or was delivered to it after the
delivery deadlines set forth in this Agreement or for any other reason, the
Paying Agent shall promptly notify the Depositor (which may be sent by facsimile
or by email, and which notice shall include the identity of those Reporting
Servicers who either did not deliver such information or delivered such
information to it after the delivery deadlines set forth in this Agreement) and
each Reporting Servicer that failed to make such delivery. In the case of Form
10-D and Form 10-K, each such Reporting Servicer shall cooperate with the
Depositor and the Paying Agent to prepare and file a Form 12b-25 and a Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act, which forms shall be filed no later than one calendar day after the
original due date for the related Form 10-D or Form 10-K, as applicable. In the
case of Form 8-K, the Paying Agent shall, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D that is required to be
filed on behalf of the Trust. In the event that any previously filed Form 8-K,
Form 10-D or Form 10-K needs to be amended, the Paying Agent shall notify the
Depositor and such other parties as may be required and such parties shall
cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any
Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall
be signed, in the case of Form 15, Form 12b-25 or any amendment to Form 8-K or
Form 10-D, by a duly authorized officer of the Depositor, and in the case of
Form 10-K, by a senior officer of the Depositor in charge of securitization. The
parties to this Agreement acknowledge (and each Additional Servicer and each
Servicing Function Participant shall be required to acknowledge) that the
performance by the Paying Agent of its duties under this Section 13.8 related to
the timely preparation and filing of Form 15, a Form 12b-25 or any amendment to
Form 8-K, Form 10-D or Form 10-K is contingent upon such parties (and, to the
extent applicable, any Additional Servicer or Servicing Function Participant)
performing their duties under this Section. 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 and/or timely file any such
308
Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K,
where such failure results from the 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, 10-D or 10-K, not resulting from its own negligence,
bad faith or willful misconduct.
SECTION 13.9 ANNUAL COMPLIANCE STATEMENTS. The Master Servicer, the
Special Servicer, any Primary Servicer and the Paying Agent and each
Sub-Servicer (each a "Certifying Servicer") shall (and the Master Servicer, the
Special Servicer, any Primary Servicer and the Paying Agent shall (a) use
reasonable efforts to cause each Additional Servicer and each Sub-Servicer with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans and (b) cause each Additional Servicer
and each Sub-Servicer with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans, to) deliver
electronically to the Depositor, the Paying Agent and the Trustee on or before
March 7th, with respect to any Additional Servicer and each Sub-Servicer
(excluding any Primary Servicer), or March 15th or if such day is not a Business
Day, the immediately preceding Business Day (with no cure period), with respect
to the Master Servicer, the Special Servicer, any Primary Servicer or the Paying
Agent, of each year, commencing in March 2008, an Officer's Certificate stating,
as to the signer thereof, that (A) a review of such Certifying Servicer's
activities during the preceding calendar year or portion thereof and of such
Certifying Servicer's performance under this Agreement, or the applicable
sub-servicing agreement or primary servicing agreement in the case of an
Additional Servicer, has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all 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. Each Certifying Servicer shall, and the Master
Servicer, the Special Servicer, any Primary Servicer and the Paying Agent shall
(a) use reasonable efforts to cause each Additional Servicer and each
Sub-Servicer with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Sub-Servicer with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to, forward a copy of each such statement to the Rating Agencies and the
Operating Adviser. Promptly after receipt of each such Officer's Certificate,
the Depositor shall have the right to review such Officer's Certificate and, if
applicable, consult with each Certifying Servicer, as applicable, as to the
nature of any failures by such Certifying Servicer, in the fulfillment of any of
the Certifying Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement. None of the Certifying Servicers
or any Additional Servicer or any Sub-Servicer shall be required to deliver, or
to endeavor to cause the delivery of, any such Officer's Certificate until April
15, in the case of a Certifying Servicer, or April 1, in the case of any
Additional Servicer or any Sub-Servicer, in any given year so long as it has
received written confirmation (which shall be provided prior to March 1) from
the Depositor that a Form 10-K is not required to be filed in respect of the
Trust for the preceding calendar year.
If any Serviced Companion Mortgage Loan is deposited into an Other
Securitization, each Certifying Servicer, to the extent applicable, shall
provide, if requested by a party to the Other Pooling and Servicing Agreement,
an Officer's Certificate as set forth in this
309
Section. With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer
will use reasonable best efforts to procure an Officer's Certificate as set
forth in this Section, or in the form specified in the applicable Non-Serviced
Pooling and Servicing Agreement, from the Non-Serviced Mortgage Loan Master
Servicer, Non-Serviced Mortgage Loan Special Servicer and the Non-Serviced
Mortgage Loan Trustee in form and substance similar to the Officer's Certificate
described in this Section. The Master Servicer shall promptly forward to the
Paying Agent and the Depositor any such Officer's Certificate received by the
Master Servicer.
SECTION 13.10 ANNUAL REPORTS ON ASSESSMENT OF COMPLIANCE WITH
SERVICING CRITERIA. By March 15th or if such day is not a Business Day, the
immediately preceding Business Day (with no cure period), with respect to the
Master Servicer, the Special Servicer, any Primary Servicer, the Paying Agent
and the Trustee, of each year, commencing in March 2008, the Master Servicer,
the Special Servicer (regardless of whether the Special Servicer has commenced
special servicing of any Mortgage Loan), the Paying Agent, any Primary Servicer
and the Trustee, each at its own expense, shall furnish electronically (and each
of the preceding parties, as applicable, shall (a) use reasonable efforts to
cause, by March 7th, each Servicing Function Participant (other than a party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by
March 7th, each Servicing Function Participant (other than a party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to furnish, each at its own
expense), to the Trustee, the Paying Agent and the Depositor, with a copy to the
Rating Agencies and the Operating Adviser, a report on an assessment of
compliance with the Relevant Servicing Criteria with respect to commercial
mortgage backed securities transactions taken as a whole involving such party
that contains (A) a statement by such Reporting Servicer of its responsibility
for assessing compliance with the Relevant Servicing Criteria, (B) a statement
that such Reporting Servicer used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such Reporting Servicer's assessment
of compliance with the Relevant Servicing Criteria as of and for the period
ending the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 13.5, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
No later than the end of each fiscal year for the Trust for which a
Form 10-K is required to be filed, the Master Servicer, the Special Servicer,
any Primary Servicer and the Trustee shall each forward to the Paying Agent and
the Depositor the name and address of each Servicing Function Participant
engaged by it and what Relevant 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, any Primary
Servicer, the Trustee and each Sub-Servicer submit their respective assessments
by March 7th or March 15th, as applicable, to the Paying Agent, each such party
shall also at such time include, in its submission to the Paying Agent, the
assessment (and attestation pursuant to Section 13.11) of each Servicing
Function Participant engaged by it.
310
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, any
Primary Servicer, the Paying Agent, the Trustee and any Servicing Function
Participant as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by the Master Servicer, any Primary Servicer, the
Special Servicer, the Paying Agent, the Trustee or any Servicing Function
Participant, respectively, and (ii) the Paying Agent shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule XV and notify the Depositor of any exceptions.
None of the Master Servicer, the Special Servicer, any Primary Servicer, the
Trustee or any Servicing Function Participant shall be required to deliver, or
to endeavor to cause the delivery of, any such reports until April 15 in the
case of the Master Servicer, the Special Servicer, any Primary Servicer or the
Trustee, or April 1 in the case of any Servicing Function Participant, in any
given year so long as it has received written confirmation (which shall be
provided prior to March 1) from the Depositor that a Form 10-K is not required
to be filed in respect of the Trust for the preceding calendar year. The parties
hereto acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 13.10 by the Master Servicer, the Special Servicer, any Primary
Servicer, the Paying Agent or the Trustee shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
If any Serviced Companion Mortgage Loan is deposited into an Other
Securitization, each of the Master Servicer, the Special Servicer (regardless of
whether the Special Servicer has commenced special servicing of any Mortgage
Loan), any Primary Servicer, if applicable, the Paying Agent and the Trustee,
each at its own expense, shall furnish (and each of the preceding parties, as
applicable, shall (a) use reasonable efforts to cause each Servicing Function
Participant (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Servicing Function Participant (other than
a party to this Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to
furnish, each at its own expense), if requested by a party to the Other Pooling
and Servicing Agreement, an annual report on assessment of compliance as set
forth in this Section and an attestation as set forth in Section 13.11. With
respect to any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage
Loan Pooling and Servicing Agreement, the Master Servicer will use reasonable
best efforts to procure an annual report on assessment of compliance as set
forth in this Section and an attestation as set forth in Section 13.11 from the
Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special
Servicer, the Non-Serviced Mortgage Loan Paying Agent and the Non-Serviced
Mortgage Loan Trustee in form and substance similar to the annual report on
assessment of compliance described in this Section and the attestation described
in Section 13.11 or in the form required under the Non-Serviced Mortgage Loan
Pooling and Servicing Agreement. The Master Servicer shall promptly forward to
the Paying Agent and the Depositor any such annual report on assessment of
compliance received by the Master Servicer.
SECTION 13.11 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. By March 15th or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), in respect of the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent and the Trustee, of
each year, commencing in March 2008, the
311
Master Servicer, the Special Servicer, any Primary Servicer, the Paying Agent
and the Trustee, each at its own expense, shall cause (and each of the preceding
parties, as applicable, shall (a) use reasonable efforts to cause, by March 7th,
each Servicing Function Participant (other than a party to this Agreement) with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans and (b) cause, by March 7th, each
Servicing Function Participant (other than a party to this Agreement) with which
it has entered into a servicing relationship after the Closing Date with respect
to the Mortgage Loans, to cause, each at its own expense) a registered public
accounting firm (which may also render other services to the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent, the Trustee, such
Sub-Servicer or such other Servicing Function Participant, as the case may be)
that is a member of the American Institute of Certified Public Accountants to
furnish electronically a report to the Trustee, the Paying Agent and the
Depositor, with a copy to the Rating Agencies and the Operating Adviser, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such Reporting Servicer, which includes an assessment from
such Reporting Servicer of its compliance with the Relevant Servicing Criteria,
and (ii) on the basis of an examination conducted by such firm in accordance
with standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, any Primary Servicer, the Paying Agent or the Trustee (or any
Sub-Servicer or Servicing Function Participant with which the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent or the Trustee has
entered into a servicing relationship with respect to the Mortgage Loans (other
than a party to this Agreement)), (i) the Depositor shall have the right to
review the report and, if applicable, consult with the Master Servicer, the
Special Servicer, any Primary Servicer, the Paying Agent, the Trustee, any
Sub-Servicer or any such Servicing Function Participant as to the nature of any
material instance of noncompliance by the Master Servicer, the Special Servicer,
the applicable Primary Servicer, the Paying Agent, the Trustee or any such
Servicing Function Participant with the Servicing Criteria applicable to such
Person, and (ii) the Paying Agent shall confirm that each assessment submitted
pursuant to Section 13.10 is coupled with an attestation meeting the
requirements of this Section and notify the Depositor of any exceptions. The
Master Servicer, the Special Servicer, the Paying Agent, any Primary Servicer,
the Trustee or any Servicing Function Participant shall not be required to
deliver, or to endeavor to cause the delivery of, such reports until April 15 in
the case of the Master Servicer, the Special Servicer, the Paying Agent, any
Primary Servicer or the Trustee, or April 1 in the case of any Servicing
Function Participant, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding fiscal year.
SECTION 13.12 INDEMNIFICATION. Each of the Master Servicer, the
Special Servicer, any Primary Servicer, the Trustee and the Paying Agent (each
an "Indemnifying Party") shall indemnify and hold harmless each Certification
Party and its affiliates (and, with respect only to clauses (a)(ii) and (a)(iii)
below, any comparable party in an Other
312
Securitization), their respective directors and officers, and each other person
who controls any such entity within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each a "Certification
Indemnitee") against any and all expenses, losses, claims, damages and other
liabilities, including without limitation the costs of investigation, legal
defense and any amounts paid in settlement of any claim or litigation arising
out of or based upon (i) failure to perform its obligations under this Article
XIII by the times required herein or (ii) the failure of any Additional Services
retained by it (other than, in the case of the Master Servicer and the Special
Servicer, as applicable, Seller Sub-Servicers) to perform its obligations under
the applicable sub-servicing agreement necessary to permit each Certification
Indemnitee to comply with the provisions of Regulation AB or (iii) negligence,
bad faith or willful misconduct on the part of the Indemnifying Party in the
performance of such obligations. The Master Servicer, the Special Servicer, any
Primary Servicer, the Paying Agent and the Trustee shall (a) use reasonable
efforts to cause each Additional Servicer (other than a party to this Agreement)
with which it has entered into a servicing relationship on or prior to the
Closing Date with respect to the Mortgage Loans and (b) use reasonable efforts
to cause each Additional Servicer (other than a party to this Agreement) with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to indemnify and hold harmless each Certification
Party (and any comparable party in an Other Securitization) from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and other costs and expenses incurred by such
Certification Party arising out of (i) a breach of its obligations to provide
any of the annual compliance statements or annual assessment of servicing
criteria or attestation reports pursuant to this Agreement, or the applicable
sub-servicing or primary servicing agreement, as applicable, or (ii) negligence,
bad faith or willful misconduct on its part in the performance of such
obligations thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, any Primary Servicer and the Paying Agent, each Additional
Servicer or other Servicing Function Participant (the "Performing Party") shall
(and the Master Servicer, the Special Servicer, any Primary Servicer, the Paying
Agent and the Trustee shall (a) use reasonable efforts to cause each Additional
Servicer or other Servicing Function Participant with which it has entered into
a servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement) and (b) cause each
Additional Servicer or other Servicing Function Participant with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement), to) contribute to the
amount paid or payable to the Certification Party as a result of the losses,
claims, damages or liabilities of the Certification Party in such proportion as
is appropriate to reflect the relative fault of the Certification Party on the
one hand and the Performing Party on the other in connection with a breach of
the Performing Party's obligations pursuant to this Article XIII (or breach of
its representations or 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 otherwise comply
with the requirements of this Article XIII) or the Performing Party's
negligence, bad faith or willful misconduct in connection therewith. The Master
Servicer, the Special Servicer, any Primary Servicer, the Paying Agent and the
Trustee shall (a) use reasonable efforts to cause each Additional Servicer or
Servicing Function Participant with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
(other than a party to this Agreement) and (b) use reasonable efforts to cause
(in the case of the indemnification in the preceding paragraph), or cause (in
the
313
case of the contribution contained in this paragraph), each Additional Servicer
or Servicing Function Participant with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans (other
than a party to this Agreement), to agree to the foregoing indemnification and
contribution obligations.
As promptly as reasonably practicable after receipt by any
Certification Indemnitee under this Section 13.12 of notice of the commencement
of any action, and as a condition precedent to the indemnification provided for
in this Section 13.12, such Certification Indemnitee will, if a claim in respect
thereof is to be made against the applicable Indemnifying Party under this
Section 13.12, notify the applicable Indemnifying Party in writing of the
commencement thereof. In case any such action is brought against any
Certification Indemnitee, the applicable Indemnifying Party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Certification Indemnitee promptly after receiving the aforesaid
notice from such Certification Indemnitee, to assume the defense thereof, with
counsel selected by the: applicable Indemnifying Party and reasonably
satisfactory to such Certification Indemnitee (which approval shall not be
unreasonably withheld, conditioned or delayed); provided, however, that if the
defendants in any such action include both the Certification Indemnitee and the
applicable Indemnifying Party, and the Certification Indemnitee shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnity parties that are different from or additional to those
available to the applicable Indemnifying Party, the Certification Indemnitee
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Certification Indemnitee. Upon receipt of notice from the applicable
Indemnifying Party to such Certification Indemnitee of its election so to assume
the defense of such action and approval by the Certification Indemnitee of
counsel (which approval shall not be unreasonably withheld, conditioned or
delayed), the applicable Indemnifying Party will not be liable for any legal or
other expenses subsequently incurred by such Certification Indemnitee in
connection with the defense thereof, unless the applicable Indemnifying Party
has authorized (which authorization shall not be unreasonably withheld,
conditioned or delayed) the employment of counsel for the Certification
Indemnitee at the expense of the applicable Indemnifying Party. The applicable
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld, conditioned or delayed) but, if settled with such consent or if there
be a final judgment for the plaintiff, the applicable Indemnifying Party shall
indemnify the Certification Indemnitee from and against any loss or liability by
reason of such settlement or judgment. If the applicable Indemnifying Party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the Certification Indemnitee (which approval
shall not be unreasonably withheld, conditioned or delayed) or, if such
settlement provides for an unconditional release of the Certification Indemnitee
in connection with all matters relating to the proceeding that have been
asserted against the Certification Indemnitee in such proceeding by the other
parties to such settlement, which release does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
Certification Indemnitee without the consent of the Certification Indemnitee.
SECTION 13.13 AMENDMENTS. This Article XIII may be amended or
modified by the parties hereto pursuant to Section 14.3 (without, in each case,
any Opinions of Counsel, Officer's Certificates, Rating Agency Confirmations or
the consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement) for purposes of complying
314
with Regulation AB and/or to conform to standards developed within the
commercial mortgage backed securities market.
SECTION 13.14 EXCHANGE ACT REPORT SIGNATURES. Each Form 8-K report
and Form 10-D report shall be signed by the Depositor. The Depositor shall
provide its signature to the Paying Agent by electronic or fax transmission
(with hard copy to follow by overnight mail) no later than the end of business
on the 13th calendar day following the related Distribution Date for Form 10-D,
and not later than the end of business on the 3rd Business Day after the
Reportable Event for Form 8-K (provided, that in each case the Paying Agent
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the Paying Agent will follow
the procedures set forth in this Article XIII. The signing party at the
Depositor can be contacted at the address identified in Section 14.5.
For the avoidance of doubt, the Special Servicer shall not be
terminated pursuant to Section 9.30(b)(x), nor shall the Special Servicer be
deemed to not be in compliance under this Agreement for purposes of Section
13.14, during any grace period provided for in this Article XIII, provided, that
if any such party fails to comply with the delivery requirements of this Article
XIII by the expiration of any applicable grace period such failure shall
constitute an Event of Default or be grounds for termination, as applicable; and
the Special Servicer shall not be terminated pursuant to Section 9.30(b)(x) nor
shall Special Servicer be deemed to not be in compliance under this Agreement
for purposes of Section 13.14, for failing to deliver any item required under
this Article XIII by the time required hereunder following the date that the
Paying Agent files the Form 15 relating to the automatic suspension of reporting
in respect of the Trust under the Trust under the Exchange Act, unless such
items will be included in any Exchange Act report that relates to any year in
which the Trust was subject to the filing requirements of the Exchange Act.
SECTION 13.15 TERMINATION OF THE PAYING AGENT AND SUB-SERVICERS.
(a) Each of the Master Servicer, the Special Servicer, any Primary
Servicer, the Paying Agent and the Trustee shall terminate, in accordance with
the related sub-servicing agreement, any Sub-Servicer with which it has entered
into such sub-servicing agreement, and the Master Servicer shall terminate any
Primary Servicer in accordance with the terms of the applicable Primary
Servicing Agreement, if such Sub-Servicer or the applicable Primary Servicer, as
the case may be, is in breach of any of its obligations under such sub-servicing
agreement or the applicable Primary Servicing Agreement, as the case may be,
whose purpose is to facilitate compliance by the Depositor of the reporting
requirements of the Exchange Act or with the provisions of Regulation AB and the
related rules and regulations of the Commission.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Paying Agent if the
Paying Agent fails to comply with any of its obligations under this Article
XIII; provided that (a) such termination shall not be effective until a
successor paying agent shall have accepted the appointment, (b) the Paying Agent
may not be terminated due to its failure to properly prepare or file on a timely
basis any Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or
any Form 12b-25 where such failure results from the Paying Agent's inability or
failure to receive, within the exact time frames set forth in this Agreement any
information, approval, direction or signature from
315
any other party hereto needed to prepare, arrange for execution or file any such
Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any form
12b-25 not resulting from its own negligence, bad faith or willful misconduct
and (c) if, following the Paying Agent's failure to comply with any of such
obligations under Sections 13.4, 13.5, 13.7, 13.9, 13.10 or 13.11 on or prior to
the dates by which such obligations are to be performed pursuant to, and as set
forth in, such Sections, (i) the Paying Agent subsequently complies with such
obligations before the Trustee or the Depositor gives written notice to it that
it is terminated in accordance with this Section 13.15(b) and (ii) the Paying
Agent's failure to comply does not cause it to fail in its obligations to timely
file the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the
related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then
the Depositor shall cease to have the right to terminate the Paying Agent under
this Section 13.15(b) on the date on which such Form 8-K, Form 10-D or Form 10-K
is so filed.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 14.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 14.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or
the grantor trust created from the related portion of the Trust) for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates, (vi) to amend any provision
herein to the extent necessary or desirable to list the Certificates on a stock
exchange, including, without limitation, the appointment of one or more
sub-paying agents and the requirement that certain information be delivered to
such sub-paying agents, (vii) to modify the provisions relating to the timing of
Advance reimbursements in order to conform them to the commercial
mortgage-backed securities industry standard for such provisions if (w) the
Depositor, the Special Servicer and the Master Servicer determine that that
industry standard has changed, (x) such modification will not result in an
Adverse REMIC
316
Event, as evidenced by an Opinion of Counsel, (y) each Rating Agency has
delivered a Rating Agency Confirmation with respect to such modification, and
(z) the Operating Adviser consents to such modification, (viii) to cause the
provisions herein to conform to the provisions of the Swap Contracts and the
related documents, or (ix) to make any other amendment which does not adversely
affect in any material respect the interests of any Certificateholder (unless
such Certificateholder consents). No such amendment effected pursuant to clause
(i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Certificateholder not consenting thereto
without the consent of 100% of the Certificateholders (if adversely affected) or
(B) adversely affect the status of any REMIC Pool as a REMIC (or the Excess
Interest Grantor Trust as a grantor trust) for purposes of federal income tax
law (or comparable provisions of state income tax law). Prior to entering into
any amendment without the consent of Holders pursuant to this paragraph, the
Trustee may require an Opinion of Counsel and a Nondisqualification Opinion (in
the case of clauses (i), (ii) and (iii), at the expense of the Depositor, and
otherwise at the expense of the party requesting such amendment, except that if
the Trustee requests such amendment, such amendment shall be at the expense of
the Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (vii) of the proviso in
paragraph (c) of this Section 14.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion/or an Opinion of Counsel that such
amendment will not result in an Adverse Grantor Trust Event, as applicable, and
an Opinion of Counsel that any amendment pursuant to this Section 14.3(b) is
permitted by this Agreement at the expense of the party requesting the
amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) directly or indirectly reduce
in any manner the amount of, or delay the timing of the distributions required
to be made on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of the Certificates in a manner other than as described in the
immediately preceding clause (i), without the consent of the Holders of all
Certificates affected thereby, (iii) change the activities of the Trust, without
the consent of the Holders of all Certificates affected thereby, (iv) reduce the
aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (v) eliminate or reduce the Master Servicer's, or the Trustee's
obligation to make an Advance, including without limitation, in the case of the
Master Servicer, the obligation to advance on a B Note or Serviced Companion
Mortgage Loan, or alter the Servicing Standard
317
except as may be necessary or desirable to comply with the REMIC Provisions,
(vi) adversely affect the status of the grantor trust created out of the related
portion of the trust, for federal income tax purposes, without the consent of
100% of the Class T Certificateholders or (vii) adversely affect the status of
any REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion), without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders but excluding the Class T Certificateholders); provided that
no such amendment may modify Section 8.18 of this Agreement without Rating
Agency Confirmation. The Trustee shall not consent to any amendment to this
Agreement pursuant to this subsection (c) unless it shall have first received a
Nondisqualification Opinion and/or an Opinion of Counsel that such amendment
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event, as
applicable, and an Opinion of Counsel that any amendment pursuant to this
Section 14.3(c) is permitted by this Agreement at the expense of the party
requesting the amendment. In addition, no amendment to this Agreement may change
in any manner the obligations of a Seller under the Mortgage Loan Purchase
Agreement without the consent of the Seller.
(d) The costs and expenses associated with any such amendment
shall be borne by the Depositor in the case the Trustee is the party requesting
such amendment or if pursuant to clauses (i), (ii) and (iii) of Section 14.3(a).
In all other cases, the costs and expenses shall be borne by the party
requesting the amendment.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under
this Section 14.3 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Furthermore, 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 rights of the Swap
Counterparty under a Swap Contract without the prior written consent of the Swap
Counterparty (which shall not be unreasonably withheld).
(h) Notwithstanding the fact that the provisions in Section
14.3(c) would otherwise apply, with respect to any amendment that significantly
modifies the permitted activities of the Trust, the Trustee, the applicable
Primary Servicer, the Master Servicer or the Special Servicer, any Certificate
beneficially owned by a Seller or any of its Affiliates shall be deemed not to
be outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 14.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 13.13 herein
318
without any notice to or consent of any of the Certificateholders, Opinions of
Counsel, Officer's Certificates or Rating Agency Confirmation.
(j) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that in certain cases, pursuant to the
terms of the related Intercreditor Agreement, this Agreement may not be amended
in any manner materially adverse to the holder of any B Note without the prior
written consent of the holder of such B Note.
SECTION 14.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 14.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy
to Xxxxxxx Xxxxxx; (B) in the case of the Trustee at its Corporate Trust Office;
(C) in the case of the Master Servicer, Xxxxx Fargo Bank, National Association,
00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Commercial Mortgage Servicing, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx
Fargo Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000; (D) in the case of MSMCH, Xxxxxx Xxxxxxx Mortgage Capital
Holdings LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend,
with a copy to Xxxxxxx Xxxxxx; (E) in the case of the Special Servicer, LNR
Partners, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq., facsimile number (305)
695 5601, and Attention: Xxxxxx Xxxxxxx, facsimile number (000) 000-0000, with
copies to Xxxx Xxxxx, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP, 000 X. Xxxxxxxx
Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, facsimile number (000) 000-0000; (F) in
the case of the initial Operating Adviser, LNR Securities Holdings, LLC, 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxxxxx, telecopy number: (000) 000-0000, with copies to Xxxx Xxxxx, Bilzin
Xxxxxxx Xxxxx Price & Xxxxxxx LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx,
Xxxxxxx 00000, facsimile number (000) 000-0000; and (G) in the case of the
Paying Agent, Xxxxx Fargo Bank, National Association, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) Xxxxxx
Xxxxxxx Capital I Inc., Series 2007-HQ12; facsimile number (000) 000-0000; or as
to each party such other address as may hereafter be furnished by such party to
the other parties in writing.. Any notice required or permitted to be mailed to
a Holder shall be given by first class mail, postage prepaid, at the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice.
SECTION 14.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way
319
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION 14.7 INDULGENCES; NO WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 14.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 14.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or
in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement (including any Primary Servicer to the extent
applicable to the applicable Primary Servicer) and their successors hereunder
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement; provided, however, that (i)
the Mortgagors set forth on Schedule VIII hereto are intended third-party
beneficiaries of the fifth and sixth paragraph of Section 2.3(a), (ii) the
holder of any Serviced Companion Mortgage Loan and any B Note, if any, is an
intended third-party beneficiary in respect of the rights afforded it hereunder,
(iii) the Swap Counterparty and its permitted successors and assigns shall be
third-party beneficiaries with respect to this Agreement and (iv) the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer are intended third-party beneficiaries of
Sections 5.2(a)(I)(ii)(B), 8.25(d) (only in the case of the Non-Serviced
Mortgage Loan Master Servicer), 9.24(d) (only in the case of the Non-Serviced
Mortgage Loan Special Servicer), and Article XIII.
SECTION 14.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 14.3
hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or REO
Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special
Servicer, the Paying Agent, the Operating Adviser or the Trustee pursuant to
this Agreement;
320
(v) the appointment of any successor to the Master Servicer,
the Trustee, the Paying Agent, the Operating Adviser or the Special Servicer
pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in
Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii)the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
321
(b) All notices to the Rating Agencies shall be in writing and
sent by first class mail, telecopy or overnight courier, as follows:
If to Fitch, to:
Fitch Ratings, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant to
Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and
the Depositor any other information as reasonably requested by the Rating
Agencies and the Depositor, and shall deliver to the applicable Primary Servicer
and the Special Servicer each of the reports required to be delivered by the
Master Servicer to the applicable Primary Servicer and the Special Servicer
pursuant to the terms of this Agreement. The Trustee, the Paying Agent and the
Special Servicer shall deliver to the Rating Agencies and the Depositor any
information as reasonably requested by the Rating Agencies and Depositor, as the
case may be.
(e) Any notice or other document required to be delivered or
mailed by the Depositor, Master Servicer, the Paying Agent or Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
322
SECTION 14.11 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same instrument.
SECTION 14.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) the property described in clauses (1)-(4) below
(regardless of whether subject to the UCC or how classified thereunder) and all
accounts, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to any of
the property described in clauses (1)-(4) below: (1) the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other insurance policies,
including all Qualifying Substitute Mortgage Loans, all distributions with
respect thereto payable on and after the Cut-Off Date, and the Mortgage Files;
(2) the Distribution Account, all REO Accounts, the Certificate Account, the
Reserve Account and the Interest Reserve Account, including all property therein
and all income from the investment of funds therein (including any accrued
discount realized on liquidation of any investment purchased at a discount); (3)
the REMIC I Regular Interests and the REMIC II Regular Interests; and (4) the
Mortgage Loan Purchase Agreements that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof;
(ii) all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
All cash and non-cash Proceeds (as defined in the Uniform Commercial
Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Custodian of the Mortgage Notes, the Mortgages
and such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial
323
Code (including, without limitation, Sections 8-301 and 9-315 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property set forth above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 14.13 RECORDATION OF AGREEMENT
. This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere.
Such recordation, if any, shall be effected by the Master Servicer at the
expense of the Trust as an Additional Trust Expense, but only upon direction of
the Depositor accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders of the Trust.
SECTION 14.14 RATING AGENCY MONITORING FEES
. The parties hereto acknowledge that on the Closing Date the Seller
will pay the ongoing monitoring fees of the Rating Agencies relating to the
rating of the Certificates and that no monitoring fees are payable subsequent to
the Closing Date in respect of the rating of the Certificates. The Master
Servicer shall not be required to pay any such fees or any fees charged for any
Rating Agency Confirmation (except any confirmation required under Section 8.22,
Section 8.23 or in connection with a termination and replacement of the Master
Servicer following an Event of Default of the Master Servicer).
SECTION 14.15 ACKNOWLEDGEMENT BY PRIMARY SERVICER
. Each Primary Servicer, if any, agrees, to the extent applicable to
the applicable Primary Servicer and the Mortgage Loans serviced by the
applicable Primary Servicer, to be bound by the terms of Sections 5.1(g), 8.3,
8.4, 8.7, 8.10, 8.18, 8.25(e), 14.3 and Article XIII of this Agreement.
324
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar and the
Authenticating Agent have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
XXXXXX XXXXXXX CAPITAL I INC.
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
LNR PARTNERS, INC., as Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Paying Agent, Authenticating
Agent and Certificate Registrar
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of July, 2007, before me, a notary public in
and for said State, personally appeared Xxxxxxx X. Xxxxxx known to me to be a
Vice President of Xxxxxx Xxxxxxx Capital I Inc., one of the entities that
executed the within instrument, and acknowledged to me that such entity 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.
/s/ Xxxxxx Xxxxxxx
--------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On July 26, 2007, before me, Xxxx Xxxxxx, Notary Public,
personally appeared Kristian X.X. Xxxxxxxxx, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 31st day of July, 2007,
by Xxxxxxxx Xxxxxxx, as Vice President on behalf of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
My Commission Expires February 19, 2011
/s/ Davika Xxxxxxxx Xxxxx
--------------------------------------------
Print Name: Xxxxx Xxxxxxxx Xxxxx
Notary Public, State of Florida
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this 31st day of July 2007, before me, Xxxxx X'Xxxx, a notary public in and
for said State, personally appeared Xxxxx X. Xxxx, known to me to be a First
Vice President of LaSalle Bank National Association, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
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.
/s/ Xxxxx X'Xxxx
-------------------------------------------------------
Xxxxx X'Xxxx
Notary Public, State of Illinois, County of Xxxx
My commission expires: September 22, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXXXX )
On this 31st day of July 2007, before me, a notary public in and for said State,
personally appeared Xxxxxxxx X. Xxxxxxxxxx, personally known to me to be a Vice
President of Xxxxx Fargo Bank, NA, one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity 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.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
--------------------------------------------------------------------------------
XXXXXX XXXXXXX CAPITAL I INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
LNR PARTNERS, INC.,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE AND CUSTODIAN
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 1, 2007
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ12
--------------------------------------------------------------------------------
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.519% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP XX. 00000X XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-1
CERTIFICATES AS OF THE CLOSING DATE: $40,000,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE
CLOSING DATE: $40,000,000
No. A-1-1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-2
[FORM OF CLASS A-1A CERTIFICATE]
THIS CLASS A-1A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AB0
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1A
CERTIFICATES AS OF THE CLOSING DATE: $366,041,000
CERTIFICATE BALANCE OF THIS CLASS A-1A CERTIFICATE AS OF THE
CLOSING DATE: $366,041,000
No. A-1A-1
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1A Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1A Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-3
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AC8
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2
CERTIFICATES AS OF THE CLOSING DATE: $289,100,000
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF
THE CLOSING DATE: $289,100,000
No. A-2-1
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-4
[FORM OF CLASS A-2FL CERTIFICATE]
THIS CLASS A-2FL CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, EACH BENEFICIAL OWNER OF THIS
CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE REPRESENTED THAT
EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION
406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT OR
(II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23 OR A
COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2FL CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: LIBOR + 0.25% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO.: 61755B XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-2FL
CERTIFICATES AS OF THE CLOSING DATE: $395,000,000
CERTIFICATE BALANCE OF THIS CLASS A-2FL CERTIFICATE AS OF THE
CLOSING DATE: $395,000,000
No. A-2FL-1
CLASS A-2FL CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2FL Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2FL Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. 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 on the basis of
the actual number of days elapsed during the related Interest Accrual Period and
a 360-day year) during the Interest Accrual Period relating to such Distribution
Date at the Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: July 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2FL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-5
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-3
CERTIFICATES AS OF THE CLOSING DATE: $131,500,000
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE AS OF THE
CLOSING DATE: $131,500,000
No. A-3-1
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-3 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-6
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AE4
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4
CERTIFICATES AS OF THE CLOSING DATE: $66,354,000
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE AS OF THE
CLOSING DATE: $66,354,000
No. A-4-1
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-4 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-7
[FORM OF CLASS A-5 CERTIFICATE]
THIS CLASS A-5 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-5 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AF1
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-5
CERTIFICATES AS OF THE CLOSING DATE: $83,000,000
CERTIFICATE BALANCE OF THIS CLASS A-5 CERTIFICATE AS OF THE
CLOSING DATE: $83,000,000
No. A-5-1
CLASS A-5 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-5 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-5 Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-5 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ____________________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-8
[FORM OF CLASS A-M CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS 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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AG9
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-M
CERTIFICATES AS OF THE CLOSING DATE: $170,856,000
CERTIFICATE BALANCE OF THIS CLASS A-M CERTIFICATE AS OF THE
CLOSING DATE: $170,856,000
No. A-M-1
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-M Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-9
[FORM OF CLASS A-MFL CERTIFICATE]
THIS CLASS A-MFL CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS 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 REFERRED TO HEREIN.
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, EACH BENEFICIAL OWNER OF THIS
CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE REPRESENTED THAT
EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION
406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT OR
(II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23 OR A
COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-MFL CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: LIBOR + 0.415% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO.: 61755B BC7
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-MFL
CERTIFICATES AS OF THE CLOSING DATE: $25,000,000
CERTIFICATE BALANCE OF THIS CLASS A-MFL CERTIFICATE AS OF THE
CLOSING DATE: $25,000,000
No. A-MFL-1
CLASS A-MFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-MFL Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-MFL Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. 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 on the basis of
the actual number of days elapsed during the related Interest Accrual Period and
a 360-day year) during the Interest Accrual Period relating to such Distribution
Date at the Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: July 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-10
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS 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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AH7
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-J
CERTIFICATES AS OF THE CLOSING DATE: $53,000,000
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE AS OF THE
CLOSING DATE: $53,000,000
No. A-J-1
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-J Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-11
[FORM OF CLASS A-JFL CERTIFICATE]
THIS CLASS A-JFL CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS A-JFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, EACH BENEFICIAL OWNER OF THIS
CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE REPRESENTED THAT
EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION
406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT OR
(II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23 OR A
COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-JFL CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: LIBOR + 0.46% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO.: 61755B XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-JFL
CERTIFICATES AS OF THE CLOSING DATE: $91,444,000
CERTIFICATE BALANCE OF THIS CLASS A-JFL CERTIFICATE AS OF THE
CLOSING DATE: $91,444,000
No. A-JFL-1
CLASS A-JFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-JFL Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-JFL Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. 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 on the basis of
the actual number of days elapsed during the related Interest Accrual Period and
a 360-day year) during the Interest Accrual Period relating to such Distribution
Date at the Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: July 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-JFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-12
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP XX. 00000X XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $41,620,000
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE
CLOSING DATE: $41,620,000
No. B-1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-13
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AK0
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $22,033,000
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE
CLOSING DATE: $22,033,000
No. C-1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-14
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP XX. 00000X XX0
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $24,482,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE
CLOSING DATE: $24,482,000
No. D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-15
[FORM OF CLASS E CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AN4
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $14,690,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE
CLOSING DATE: $14,690,000
No. E-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS F CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AP9
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $24,482,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE
CLOSING DATE: $24,482,000
No. F-1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS G CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AQ7
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $22,034,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE
CLOSING DATE: $22,034,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. G-1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS H CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AR5
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $22,033,000
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE
CLOSING DATE: $22,033,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. H-1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS J CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AS3
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $14,690,000
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE
CLOSING DATE: $14,690,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. J-1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS K CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AT1
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $22,482,000
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE
CLOSING DATE: $22,482,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. K-1
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS L CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AU8
AGGREGATE OF THE CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $22,034,000
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE
CLOSING DATE: $22,034,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. L-1
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS M CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.812% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AV6
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $22,033,000
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE
CLOSING DATE: $22,033,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. M-1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Xxxxxx Xxxxxxx Capital I Inc. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate
Registrar, the Master Servicer and the Special Servicer, a summary of certain of
the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-23
[FORM OF CLASS N CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.281% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AW4
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $14,690,000
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE
CLOSING DATE: $14,690,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. N-1
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class N Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-24
[FORM OF CLASS O CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.281% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AX2
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES
AS OF THE CLOSING DATE: $4,896,000
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE
CLOSING DATE: $4,896,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. O-1
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class O Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-25
[FORM OF CLASS P CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.281% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AY0
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $7,345,000
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE
CLOSING DATE: $7,345,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. P-1
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class P Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class P
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class P Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class P Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-26
[FORM OF CLASS Q CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS Q CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS Q 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.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.281% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B AZ7
AGGREGATE CERTIFICATE BALANCE OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $4,896,000
CERTIFICATE BALANCE OF THIS CLASS Q CERTIFICATE AS OF THE
CLOSING DATE: $4,896,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. Q-1
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class Q Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class Q
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class Q Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class Q Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-27
[FORM OF CLASS S CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS S CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS S 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.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 5.281% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
CUSIP NO. 61755B BA1
AGGREGATE CERTIFICATE BALANCE OF THE CLASS S CERTIFICATES
AS OF THE CLOSING DATE: $4,897,000
CERTIFICATE BALANCE OF THIS CLASS S CERTIFICATE AS OF THE
CLOSING DATE: $4,897,000 (SUBJECT TO SCHEDULE OF EXCHANGES
ATTACHED)
No. S-1
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class S Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class S
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class S Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class S Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-28
[FORM OF CLASS T CERTIFICATE]
THIS CLASS T CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NO PASS-THROUGH RATE, CERTIFICATE BALANCE OR NOTIONAL
AMOUNT. THE HOLDER OF THIS CERTIFICATE IS ENTITLED ONLY TO THE DISTRIBUTIONS
DESCRIBED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
PERCENTAGE INTEREST OF THIS CLASS T CERTIFICATE: 100% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: JULY 1, 2007
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
No. T-1
CLASS T CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT LNR Securities Holdings, LLC. is the registered owner of the
interest evidenced by this Certificate in the Class T Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
T Certificates specified on the face hereof. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests,
rights, benefits, obligations, proceeds, and duties evidenced hereby and the
rights, duties and obligations of the Trustee and the Paying Agent. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement.
Distributions on this Certificate will be made out of the Available Distribution
Amount, to the extent and subject to the limitations set forth in the Pooling
and Servicing Agreement, on the 4th Business Day after the related Determination
Date (a "Distribution Date") commencing on the first Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"). The Determination Date is the
8th day of each month, or, if the 8th day is not a Business Day, the next
succeeding Business Day (a "Determination Date"), commencing December 8, 2006.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class T Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefore, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Class T Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase the
Mortgage Loans and any other property remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 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, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-29
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH
TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE: 100% SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007 PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007 NO. R-I-1
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the
Trust and (B) the disposition of all REO Property or (ii) the sale of the
property held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-30
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC,
A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL
UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE: 100% SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007 PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007 NO. R-II-1
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Master Servicer and the Special Servicer, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the
Trust and (B) the disposition of all REO Property or (ii) the sale of the
property held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-31
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS
IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR
TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS
CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH
PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO
PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE: 100% SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007 PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007 NO. R-III-1
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Paying Agent, the Master Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The Trust
consists primarily of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and Distribution Account, the Insurance
Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 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.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the
Trust and (B) the disposition of all REO Property or (ii) the sale of the
property held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-32
[FORM OF CLASS X CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12
INITIAL PASS-THROUGH RATE: 0.027% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE:
$1,958,564,351 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JULY 1, 2007 PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JULY 31, 2007 CUSIP NO. 61755B AM6
FIRST DISTRIBUTION DATE: AUGUST 14, 2007
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AS OF
THE CLOSING DATE: $1,958,564,351 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. X-1
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 4th
Business Day after the related Determination Date (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). The Determination Date is the 8th day of each month, or, if
the 8th day is not a Business Day, the next succeeding Business Day (a
"Determination Date"), commencing August 8, 2007. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged
for one or more Regulation S Permanent Global Certificates, the Holder hereof
shall not be entitled to receive payments hereon; until so exchanged in full,
this Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in whole or in
part for one or more Global Certificates only (i) on or after the termination of
the 40-day distribution compliance period (as defined in Regulation S) and (ii)
upon presentation of a Regulation S Certificate (as defined in the Pooling
Agreement) required by Article III of the Pooling and Servicing Agreement. Upon
exchange of this Regulation S Temporary Global Certificate for one or more
Global Certificates, the Trustee shall cancel this Regulation S Temporary Global
Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: JULY 31, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and
not as tenants in common Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
-------------------------------- IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------
-------------------------------- _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank
or trust company or by a member firm of the New York
Stock Exchange or another national securities exchange.
Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
July 31, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
LNR Securities Holdings, LLC
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the Class A-2FL SWAP Contract, the Class A-MFL SWAP Contract,
the Class A-JFL SWAP Contract, the REMIC I Regular Interests, the REMIC II
Regular Interests, the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest, and the Class A-JFL Regular Interest.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
By: ___________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
JULY 31, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
LNR Securities Holdings, LLC
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v), (vi), (viii), (x) and (xii) of the definition of "Mortgage File," and
any documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent known by a
Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement, are in its possession, (b) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the Mortgage Note and the Mortgage,
the street address of the Mortgaged Property and the name of the Mortgagor set
forth in the Mortgage Loan Schedule
accurately reflects the information contained in the documents in the Mortgage
File, and (d) each Mortgage Note has been endorsed. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File or any of
the Trustee Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the Class A-2FL SWAP Contract, the Class A-MFL SWAP Contract,
the Class A-JFL SWAP Contract, the REMIC I Regular Interests, the REMIC II
Regular Interests, the Class A-2FL Regular Interest, the Class A-MFL Regular
Interest, and the Class A-JFL Regular Interest.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
By: ______________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee and Custodian
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc.
Mortgage Pass-Through Certificates, Series 2007-HQ12
DATE:__________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of July 1,
2007 by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer, LNR Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee and Custodian, and Xxxxx
Fargo Bank, National Association, as Paying Agent, Certificate Registrar and
Authenticating Agent (the "Pooling and Servicing Agreement"), the undersigned
hereby requests a release of the Trustee Mortgage File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have
been or will be, following the [Master] [Special] Servicer's
release of the Trustee Mortgage File, credited to the
Certificate Account or the Distribution Account pursuant to
the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By: _________________________________
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
a Certificate (the "Transferred Certificate") having an initial Certificate
Balance or Notional Amount as of July 31, 2007 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July 1, 2007,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, LNR Partners, Inc., as special
servicer, LaSalle Bank National Association, as trustee and custodian, Xxxxx
Fargo Bank, National Association, as paying agent, certificate registrar and
authenticating agent (in such capacity, the "Paying Agent"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from any
and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any
Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in
any other manner, or (e) taken any other action, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of any Certificate under the Securities Act of 1933, as
amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Certificate pursuant to the Securities Act or any state securities laws.
Very truly yours,
_____________________________________
(Transferor)
By: _________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates having an initial Certificate Balance or Notional
Amount as of July 31, 2007 (the "Settlement Date") of $__________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of July 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, National
Association, as master servicer, LNR Partners, Inc., as special servicer,
LaSalle Bank National Association, as trustee and custodian, and Xxxxx Fargo
Bank, National Association, as paying agent, certificate registrar and
authenticating agent (in such capacity, the "Paying Agent"). All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is
aware that the sale to it of the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of a Qualified
Institutional Buyer, and understands that such Transferred Certificates
may be resold, pledged or transferred only (i) to a person reasonably
believed to be a Qualified Institutional Buyer that purchases for its own
account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, (e) any credit
enhancement mechanism associated with the Transferred Certificates and (f)
all related matters that it has requested.
3. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee 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 Certificate Registrar (or its agent) with respect to distributions to
be made on the Transferred Certificates. The Transferee has attached
hereto either (i) a duly executed IRS Form W-8BEN (or successor form),
which identifies the Transferee as the beneficial owner of the Transferred
Certificates and states that the Transferee is not a U.S. Person, (ii)
Form W-8IMY (with appropriate attachments) or (iii) two duly executed
copies of IRS Form W-8ECI (or successor form), which identify the
Transferee as the beneficial owner of the Transferred Certificates and
states that interest and original issue discount on the Transferred
Certificates is, or is expected to be, effectively connected with a U.S.
trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) 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 (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or
partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United
States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax
purposes, an estate the income of which is subject to U.S. federal income
taxation 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 United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
_____________________________________
(Transferee)
By: _________________________________
Name: _______________________________
Title: ______________________________
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___________________
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
_____________________________________________
_____________________________________________
_____________________________________________
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
_____________________________________
Print Name of Transferee
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
_____________________________________
Print Name of Transferee or Adviser
By:__________________________________
Name:
Title:
IF AN ADVISER:
_____________________________________
Print Name of Transferee
Date:________________________________
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates having an initial Certificate
Balance or Notional Amount as of July 31, 2007 (the "Settlement Date") of
$__________ (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, (the "Pooling and Servicing Agreement") dated as of July 1, 2007,
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank,
National Association, as master servicer, LNR Partners, Inc., as special
servicer, LaSalle Bank National Association, as trustee and custodian (the
"Trustee"), and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent (the "Paying Agent"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either: (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 to the Pooling and Servicing
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit D-2B to
the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory
to the Certificate Registrar with respect to the availability of such exemption
from registration under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
5. (a) With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class E, Class F, Class G and Class H
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
AND
(b) With respect to any Transferred Certificate that is the Class A-MFL
Certificate, the Transferee understands that each Transferred Certificate will
bear the following legend --
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY RETIREMENT
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT
TO ERISA OR SECTION 4975 OF THE CODE, OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OR, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT UNLESS SUCH TRANSFEREE REPRESENTS THAT ITS ACQUISITION
AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR
EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 OR A
SIMILAR EXEMPTION.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Certificate, any interest in any
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized or will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to any Certificate,
any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
(d) the nature, performance and servicing of the Mortgage Loans, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
8. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee 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
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the
Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments)
or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which
identify the Transferee as the beneficial owner of the Transferred Certificates
and states that interest and original issue discount on the Transferred
Certificates is, or is expected to be, effectively connected with a U.S. trade
or business. The Transferee agrees to provide to the Certificate Registrar (or
its agent) 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 (or its agent) 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 (or its
agent).
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation 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 United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
_____________________________________
(Transferee)
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of July 31, 2007 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
2007, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx
Fargo Bank, National Association, as master servicer, LNR Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee (the "Trustee"),
and Xxxxx Fargo Bank, National Association, as paying agent, certificate
registrar and authenticating agent (in such capacity, the "Paying Agent"). All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, and for the benefit of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) none of the Depositor, the
Trustee or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. (a) With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class E, Class F, Class G and Class H
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
AND
(b) With respect to any Transferred Certificate that is the
Class A-MFL Certificate, the Transferee understands that each Transferred
Certificate will bear the following legend --
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF THIS CERTIFICATE
OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ERISA OR SECTION 4975 OF THE
CODE, OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OR, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT UNLESS SUCH TRANSFEREE REPRESENTS THAT ITS ACQUISITION AND
HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 OR A SIMILAR EXEMPTION.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate, any interest in any Certificate or any other similar
security.
7. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
(d) the nature, performance and servicing of the Mortgage Loans, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
8. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee 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
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) 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 (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation 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 United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
_____________________________________
(Transferee)
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of July 31, 2007 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
2007, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx
Fargo Bank, National Association, as master servicer, LNR Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee and custodian
(the "Trustee"), and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent (in such capacity, the "Paying
Agent"). All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that
the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificate for its own account or for the account of
a qualified institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. (a) With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class E, Class F, Class G and Class H
Certificates), the Transferee understands that each Transferred Certificate will
bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I 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 APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
AND
(b) With respect to any Transferred Certificate that is the Class A-MFL
Certificate, the Transferee understands that each Transferred Certificate will
bear the following legend --
AS LONG AS THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF THIS CERTIFICATE OR
ANY INTEREST HEREIN MAY BE MADE (A) TO ANY RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO ERISA OR SECTION 4975 OF THE
CODE, OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OR, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT UNLESS SUCH TRANSFEREE REPRESENTS THAT ITS ACQUISITION AND
HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 OR A SIMILAR EXEMPTION.
6. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
(d) the nature, performance and servicing of the Mortgage Loans, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
7. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee 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
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) 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 (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation 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 United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
_____________________________________
(Transferee)
By:__________________________________
Name:________________________________
Title:_______________________________
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
_________________________________________________
_________________________________________________
_________________________________________________
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
_____________________________________
Print Name of Transferee
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
_____________________________________
Print Name of Transferee or Adviser
By:__________________________________
Name:________________________________
Title:_______________________________
IF AN ADVISER:
_____________________________________
Print Name of Transferee
Date:________________________________
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
(TRANSFEREE)
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee (i) is, and as of the date of transfer will be, a
"Qualified Institutional Buyer" and will endeavor to remain a "Qualified
Institutional Buyer" for so long as it holds the Residual Certificates, and (ii)
is acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Qualified Institutional Buyer"
is a qualified institutional buyer qualifying pursuant to Rule 144A under the
Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is
through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Certificates
may be a "noneconomic residual interest" within the meaning of Treasury
regulation Section 1.860E-1(c) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
5. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee's taxpayer identification number is ________________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (ii)(G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
11. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
12. The Transferee (i) is, and at the time of transfer will be, a United
States Tax Person and (ii) is not, and at the time of the transfer will not be,
a foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty, of any United States Tax Person. If the Transferee
is a partnership, trust or disregarded entity for U.S. federal income tax
purposes, then each person that may be allocated income from the Residual
Certificate is, and at the time of transfer will be, a United States Tax Person.
13. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any
consideration paid to it to acquire the Residual Certificate in accordance with
U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by
computing present values using a discount rate equal to the Federal short-term
rate prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
[b] The transfer of the Residual Certificate complies with Treasury
Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in Treasury
Regulation Section 1.860E-1(c)(6), as to which income from the Residual
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the Transferee's fiscal 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 Treasury
Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a
principal purpose for holding or acquiring that asset is to permit the
Transferee to satisfy this Section 15(ii)) in excess of $100 million and net
assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in Treasury Regulation Section
1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury
Regulation Section 1.860E-1(c)(i), (ii), and (iii) and this Section 15 and the
transfer is not to a foreign permanent establishment (within the meaning of an
applicable income tax treaty) of such eligible corporation or any other
arrangement by which the Residual Certificate will be at any time subject to net
tax by a foreign country or possession of the United States; and
(iv) the Transferee determined the consideration paid to it to acquire
the Residual Certificate, based on reasonable market assumptions (including,
but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee) that it has
determined in good faith, is a reasonable amount.
16. The Transferee has historically paid its debts as they have come due
and will continue to do so in the future.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this ___
day of ___________, ____.
[NAME OF TRANSFEREE]
By:__________________________________
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR AFFIDAVIT AND AGREEMENT
(TRANSFEROR)
_______________, 20__
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx
Fargo Bank, National Association, as master servicer, LNR Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee and custodian,
Xxxxx Fargo Bank, National Association, as paying agent, certificate registrar
and authenticating agent. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
4. The Transferor does not know and has no reason to know that the
Transferee is not a Permitted Transferee, is not a United States Tax Person, is
a foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty, of any United States Tax Person, or is a Person
with respect to which income on the Residual Certificate is attributable to a
foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty.
5. The Transferor does not know and has no reason to know that the
Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
_____________________________________
(Transferor)
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12, CLASS (THE "CERTIFICATES")
TO: Euroclear System
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 2007
By: _________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G-1
[RESERVED]
EXHIBIT G-2
[RESERVED]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Master Servicer
LNR Partners, Inc., as Special Servicer
Xxxxx Fargo Bank, National Association,
as Certificate Registrar, Paying Agent and Authenticating Agent
LaSalle Bank National Association,
as Trustee and Custodian
This is to notify you as to the transfer of the beneficial interest in
$_______________ of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate(3) for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess
thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By: _________________________________
[Name], [Chief Financial
or other Executive Officer]
----------------------
(3) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE
REGISTRAR UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE
NO LONGER HELD IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HQ12, CLASS (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Certificate Registrar
Attn: Mortgage & Corporate Trust Services
LaSalle Bank National Association, as Trustee and Custodian
Attn: Coporate Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of July 1, 2007 (the "Pooling and Servicing
Agreement") among both of you, Xxxxxx Xxxxxxx Capital I Inc., LNR Partners, Inc.
and Xxxxx Fargo Bank, National Association, U.S. $__________ principal amount of
the above-captioned Certificates held by us or on our behalf are beneficially
owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the
Certificates in transactions that did not require registration under the United
States Securities Act of 1933, as amended (the "Securities Act"). As used in
this paragraph, the term "U.S. person" has the meaning given to it by Regulation
S under the Securities Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class __
Regulation S Temporary Global Certificate shall be exchanged for an interest in
the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global Certificate: We
hereby agree to hold (and return to the Trustee upon request) any payments
received by us on the Class __ Regulation S Temporary Global Certificate (as
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office, as
operator of the Euroclear
System]
or
[CLEARSTREAM]
By: _________________________________
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
None
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II (MSMCH)
================================================================================
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 26, 2007
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................3
2. CONVEYANCE OF MORTGAGE LOANS.............................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER...16
6. CLOSING.................................................................21
7. CLOSING DOCUMENTS.......................................................22
8. COSTS...................................................................25
9. NOTICES.................................................................25
10. SEVERABILITY OF PROVISIONS..............................................25
11. FURTHER ASSURANCES......................................................25
12. SURVIVAL................................................................25
13. GOVERNING LAW...........................................................26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................26
15. MISCELLANEOUS...........................................................26
16. ENTIRE AGREEMENT........................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Xxxx of Sale
Exhibit 4 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................18
Agreement......................................................................2
Certificate Purchase Agreement.................................................2
Certificates...................................................................2
Closing Date...................................................................3
Collateral Information........................................................11
Crossed Mortgage Loans........................................................17
Custodian......................................................................2
Defective Mortgage Loan.......................................................17
Final Judicial Determination..................................................20
Indemnification Agreement.....................................................14
Initial Purchaser..............................................................2
Master Servicer................................................................2
Material Breach...............................................................16
Material Document Defect......................................................16
Memorandum.....................................................................2
MERS...........................................................................5
Mortgage File..................................................................4
Mortgage Loan Schedule.........................................................3
Mortgage Loans.................................................................2
Officer's Certificate..........................................................8
Pooling and Servicing Agreement................................................2
Private Certificates...........................................................2
Prospectus Supplement..........................................................2
Public Certificates............................................................2
Purchaser......................................................................2
Repurchased Loan..............................................................18
Seller.........................................................................2
Servicing File.................................................................9
Special Servicer...............................................................2
Trust..........................................................................2
Trustee........................................................................2
Underwriters...................................................................2
Underwriting Agreement.........................................................2
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMCH LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of July 26,
2007, between Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC (the "Seller"), as
successor in interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage
loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein.
Purchaser will convey the Mortgage Loans to a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be dated as of July 1, 2007, between Purchaser, as depositor,
Xxxxx Fargo Bank, National Association, as master servicer, LNR Partners, Inc.,
as special servicer ("Special Servicer"), LaSalle Bank National Association, as
trustee (in such capacity, "Trustee") and custodian (in such capacity,
"Custodian"), and Xxxxx Fargo Bank, National Association as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans, the Trust will issue to the Depositor pass-through certificates to be
known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Certificates"). The Certificates will be
issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement. The term
"Master Servicer" as used herein shall mean Xxxxx Fargo Bank, National
Association, in its capacity as a master servicer under the Pooling and
Servicing Agreement unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-2FL, Class A-3, Class X-0,
Xxxxx X-0, Class A-M, Class A-MFL, Class A-J, Class A-JFL, Class B, Class C and
Class D Certificates (the "Public Certificates") will be sold by Purchaser to
Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated July 26, 2007 (the "Underwriting Agreement"), and the
Class X, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and
Class R-III Certificates (the "Private Certificates") will be sold by Purchaser
to Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchaser,
dated July 26, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated July 26,
2007 (together with the Prospectus,
2
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
July 26, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
AGREEMENT TO PURCHASE.
Seller agrees to sell, and Purchaser agrees to purchase, on a servicing released
basis, the Mortgage Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is July 1, 2007. The
Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of $1,958,564,352. The sale of the
Mortgage Loans shall take place on July 31, 2007 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by Purchaser for the Mortgage Loans shall equal the amount set
forth as such purchase price in a letter dated as of the date hereof, between
the parties to this Agreement and entered into in connection with this Agreement
and the issuance of the Certificates, which purchase price excludes accrued
interest and applicable deal expenses. The purchase price shall be paid to
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, Purchaser will assign to Trustee pursuant to the Pooling
and Servicing Agreement all of its right, title and interest in and to the
Mortgage Loans and its rights under this Agreement (to the extent set forth in
Section 14), and Trustee shall succeed to such right, title and interest in and
to the Mortgage Loans and Purchaser's rights under this Agreement (to the extent
set forth in Section 14).
CONVEYANCE OF MORTGAGE LOANS.
Effective as of the Closing Date, subject only to receipt of the consideration
referred to in Section 1 hereof and the satisfaction of the conditions specified
in Sections 6 and 7 hereof, Seller does hereby transfer, assign, set over and
otherwise convey to Purchaser, without recourse, except as specifically provided
herein, all the right, title and interest of Seller, with the understanding that
a Servicing Rights Purchase and Sale Agreement, dated July 26, 2007, will be
executed by Seller and Master Servicer, in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of the Closing Date. The Mortgage Loan
Schedule, as it may be amended from time to time on or prior to the Closing
Date, shall conform to the requirements of this Agreement and the Pooling and
Servicing Agreement. In connection with such transfer and assignment, Seller
shall deliver to or on behalf of Trustee, on behalf of Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for
each Mortgage Loan and on or prior to the fifth Business Day after the Closing
Date, five limited powers of attorney substantially in the form attached hereto
as Exhibit 4 in favor of Trustee, Master Servicer and Special Servicer to
empower Trustee, Master Servicer and, in the event of the
3
failure or incapacity of Trustee and Master Servicer, Special Servicer, to
submit for recording, at the expense of Seller, any Mortgage Loan documents
required to be recorded as described in the Pooling and Servicing Agreement and
any intervening assignments with evidence of recording thereon that are required
to be included in the Mortgage Files (so long as original counterparts have
previously been delivered to Trustee). Seller agrees to reasonably cooperate
with Trustee, Master Servicer and Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to Seller, but in no event
earlier than 18 months from the Closing Date, and (ii) the date (if any) on
which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. Custodian
shall submit such documents for recording, at Seller's expense, after the
periods set forth above, provided, however, Custodian shall not submit such
assignments for recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its return from
the applicable recording office. In addition, not later than the 30th day
following the Closing Date, Seller shall deliver to or on behalf of Trustee each
of the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions and additional time periods as are permitted by this Section 2)
with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller
acknowledges that the term "without recourse" does not modify the duties of
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the Closing Date are
to be held by or on behalf of Trustee in escrow on behalf of Seller at all times
prior to the Closing Date. The Mortgage Files shall be released from escrow upon
closing of the sale of the Mortgage Loans and payments of the purchase price
therefor as contemplated hereby. The Mortgage File for each Mortgage Loan shall
contain the following documents:
The original Mortgage Note bearing all intervening endorsements, endorsed,
by Allonge or on the original Mortgage Note, "Pay to the order of LaSalle Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ12, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit, with a copy of the Mortgage Note attached
thereto;
The original Mortgage, with evidence of recording thereon, and, if the
Mortgage was executed pursuant to a power of attorney, a certified true copy of
the power of attorney certified by the public recorder's office, with evidence
of recording thereon (if recording is customary in the jurisdiction in which
such power of attorney was executed), or certified by a title insurance company
or escrow company to be a true copy thereof; provided that if such original
Mortgage cannot be delivered with evidence of recording thereon on or prior to
the 90th day following the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been delivered for recordation
or because such original Mortgage has been lost, Seller shall deliver or cause
to be delivered to Trustee a true and correct copy of such Mortgage, together
with (i) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of Seller stating that such original
Mortgage has been sent to the
4
appropriate public recording official for recordation or (ii) in the case of an
original Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
The originals of all agreements modifying a Money Term or other material
modification, consolidation and extension agreements, if any, with evidence of
recording thereon, or if any such original modification, consolidation or
extension agreement has been delivered to the appropriate recording office for
recordation and either has not yet been returned on or prior to the 90th day
following the Closing Date with evidence of recordation thereon or has been lost
after recordation, a true copy of such modification, consolidation or extension
certified by Seller together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of Seller stating that such
original modification, consolidation or extension agreement has been dispatched
or sent to the appropriate public recording official for recordation or (ii) in
the case of an original modification, consolidation or extension agreement that
has been lost after recordation, a certification by the appropriate county
recording office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any;
An original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ12," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause Trustee to be
shown as the owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
Originals of all intervening assignments of Mortgage (except with respect
to any Mortgage that has been recorded in the name of MERS or its designees), if
any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
Seller, or in the case of an original blanket intervening assignment of Mortgage
retained by Seller, a copy thereof certified by Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior to the
90th day following the Closing Date from the applicable recording office or has
been lost, a true and correct copy thereof, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of Seller
stating that such original intervening assignment of Mortgage has been sent to
the appropriate public recording official for recordation or (ii) in the case of
an original intervening Assignment of Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such assignment is recorded that such copy is a true and complete copy of the
original recorded intervening Assignment of Mortgage;
5
If the related Assignment of Leases is separate from the Mortgage, the
original of such Assignment of Leases with evidence of recording thereon or, if
such Assignment of Leases has not been returned on or prior to the 90th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ12," which assignment may be effected in the related Assignment of
Mortgage, provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of Trustee
will be required to be recorded or delivered and instead, Seller shall take all
actions as are necessary to cause Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS and shall
deliver to Special Servicer evidence confirming that Trustee is shown as the
owner on the record of MERS;
The original or a copy of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
The original Title Insurance Policy, or in the event such original Title
Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report with an original Title Insurance Policy to follow
within 180 days of the Closing Date;
(A) Copies of UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements assigning such UCC
financing statements to Trustee executed and delivered in connection with the
Mortgage Loan, provided, if the related Mortgage has been recorded in the name
of MERS or its designee, no such financing statements will be required to be
recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
Copies of the related ground lease(s), if any, to any Mortgage Loan where
the Mortgagor is the lessee under such ground lease and there is a lien in favor
of the mortgagee in such lease;
Copies of any loan agreements, lock-box agreements and intercreditor
agreements (including, without limitation, any Intercreditor Agreement, any
Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan Pair
Intercreditor Agreement, and a copy (that is, not the
6
original) of the mortgage note evidencing the related B Note), if any, related
to any Mortgage Loan;
Either (A) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan (other than letters of credit
representing tenant security deposits which have been collaterally assigned to
the lender), which shall be assigned and delivered to Trustee on behalf of the
Trust with a copy to be held by Primary Servicer (or Master Servicer), and
applied, drawn, reduced or released in accordance with documents evidencing or
securing the applicable Mortgage Loan, the Pooling and Servicing Agreement and
the Primary Servicing Agreement or (B) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be held by Primary Servicer
(or Master Servicer) on behalf of Trustee, with a copy to be held by Trustee,
and applied, drawn, reduced or released in accordance with documents evidencing
or securing the applicable Mortgage Loan, the Pooling and Servicing Agreement
and the Primary Servicing Agreement (it being understood that Seller has agreed
(a) that the proceeds of such letter of credit belong to the Trust, (b) to
notify, on or before the Closing Date, the bank issuing the letter of credit
that the letter of credit and the proceeds thereof belong to the Trust, and to
use reasonable efforts to obtain within 30 days (but in any event to obtain
within 90 days) following the Closing Date, an acknowledgement thereof by the
bank (with a copy of such acknowledgement to be sent to Trustee) or a reissued
letter of credit and (c) to indemnify the Trust for any liabilities, charges,
costs, fees or other expenses accruing from the failure of Seller to assign the
letter of credit hereunder including the right and power to draw on the letter
of credit). In the case of clause (B) above, any letter of credit held by
Primary Servicer (or Master Servicer) acknowledges that any letter of credit
held by it shall be held in its capacity as agent of the Trust, and if Primary
Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, Primary Servicer (or Master Servicer) has agreed to assign the
applicable letter of credit to the Trust or at the direction of Special Servicer
to such party as Special Servicer may instruct, in each case, at the expense of
Primary Servicer (or Master Servicer). Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
The original or a copy of the environmental indemnity agreement, if any,
related to any Mortgage Loan;
Copies of third-party management agreements, if any, for all hotels and
for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date
principal balance equal to or greater than $20,000,000;
The original or a copy of any Environmental Insurance Policy; and
Any affidavit and indemnification agreement.
With respect to the RREEF Portfolio Pari Passu Loan and the Deptford Mall
Pari Passu Loan, a copy of the MSCI 2007-HQ11 Pooling and Servicing Agreement
and with respect to the Beacon Seattle & DC Portfolio Pari Passu Loan, a copy of
the MSCI 2007-IQ14 Pooling and Servicing Agreement.
7
With respect to the RREEF Portfolio Pari Passu Loan, the Deptford Mall
Pari Passu Loan and the Beacon Seattle & DC Portfolio Pari Passu Loan, the
preceding document delivery requirements will be met by the delivery by the
Depositor of copies of the documents specified above (other than the Mortgage
Notes and all intervening endorsements) evidencing the RREEF Portfolio Pari
Passu Loan, the Deptford Mall Pari Passu Loan and the Beacon Seattle & DC
Portfolio Pari Passu Loan, as applicable, including a copy of the related Pari
Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12 above
shall be delivered to Primary Servicer, Master Servicer or Trustee (as the case
may be) within 45 days of the Closing Date. In addition, a copy of any ground
lease shall be delivered to Primary Servicer within 30 days of the Closing Date.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
The Assignments of Mortgage and assignment of Assignment of Leases referred to
in Sections 2.2.4 and 2.2.6 may be in the form of a single instrument assigning
the Mortgage and the Assignment of Leases to the extent permitted by applicable
law. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording or filing of multiple assignments of
mortgages, assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any
of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3, 2.2.5
or 2.2.6, with evidence of recording thereon, solely because of a delay caused
by the public recording office where such document or instrument has been
delivered for recordation within such 90 day period, but Seller delivers a
photocopy thereof (certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof submitted for recording), to
Trustee within such 90 day period, Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as Trustee may consent to, which consent shall not be
unreasonably withheld so long as Seller is, as certified in writing to Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
Trustee, as assignee or transferee of Purchaser, shall be entitled to all
scheduled payments of principal due thereon after the Cut-Off Date, all other
payments of principal collected after the Cut-Off Date (other than scheduled
payments of principal due on or before the Cut-Off Date), and all payments of
interest on the Mortgage Loans allocable to the period commencing on the
8
Cut-Off Date. All scheduled payments of principal and interest due on or before
the Cut-Off Date and collected after the Cut-Off Date shall belong to Seller.
Within 45 days following the Closing Date, Seller shall deliver, and Purchaser,
Trustee or the agents of either may submit or cause to be submitted for
recordation at the expense of Seller, in the appropriate public office for real
property records, each assignment referred to in clauses 2.2.4, 2.2.6(ii) and
2.2.9(B) above (with recording information in blank if such information is not
yet available). If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller shall, at
its own expense (except in the case of a document or instrument that is lost by
Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with respect to which
the related Mortgagor has entered into a franchise agreement and each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, Seller shall provide a notice on or prior to the date that is 30 days
after the Closing Date to the franchisor or the issuing financial institution,
as applicable, of the transfer of such Mortgage Loan to the Trust pursuant to
the Pooling and Servicing Agreement, and inform such parties that any notices to
the Mortgagor's lender pursuant to such franchise agreement or letter of credit
should thereafter be forwarded to Master Servicer and, with respect to each
franchise agreement, provide a franchise comfort letter to the franchisor on or
prior to the date that is 30 days after the Closing Date. After the Closing
Date, with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of Master Servicer or the applicable Primary
Servicer, Seller will draw on such letter of credit as directed by Master
Servicer or such Primary Servicer in such notice to the extent Seller has the
right to do so.
Documents that are in the possession of Seller, its agents or its subcontractors
that relate to the servicing of any Mortgage Loans and that are not required to
be a part of the Mortgage File and are reasonably necessary for the ongoing
administration and/or servicing of the applicable Mortgage Loan (the "Servicing
File") shall be delivered to Trustee shall be shipped by Seller to or at the
direction of Master Servicer, on behalf of Purchaser, on or prior to the 75th
day after the Closing Date, in accordance with Section 3.1 of the Primary
Servicing Agreement, if applicable.
The documents required to be delivered to Master Servicer (or in the
alternative, Primary Servicer) shall include, to the extent required to be (and
actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses or data. Delivery of
any of the foregoing documents to Primary Servicer shall be deemed a delivery to
9
Master Servicer and satisfy Seller's obligations under this subparagraph. Each
of the foregoing items may be delivered by Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to Master Servicer.
Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this
Agreement, the ownership of each Mortgage Note, Mortgage and the other contents
of the related Mortgage File shall be vested in Purchaser and its assigns, and
the ownership of all records and documents constituting the Servicing File with
respect to the related Mortgage Loan prepared by or that come into the
possession of Seller shall immediately vest in Purchaser and its assigns, and
shall be delivered promptly by Seller to or on behalf of either Trustee or
Master Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. Seller's and Purchaser's records shall reflect the transfer
of each Mortgage Loan from Seller to Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in this Section 2 shall be deemed to be a
grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property and other rights
arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
10
All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Section 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
Notifications to Persons holding such property, and acknowledgments, receipts,
or confirmations from persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or Persons holding for, Purchaser or its
designee, as applicable, for the purpose of perfecting such security interest
under applicable law.
Seller hereby agrees to provide Purchaser with prompt notice of any information
it receives which indicates that the transfer of each Mortgage Loan from Seller
to Purchaser may not be treated as a sale. Seller shall, to the extent
consistent with this Agreement and upon request by or on behalf of Purchaser,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, Seller hereby authorizes
Master Servicer, Trustee and Custodian to file all filings necessary to maintain
the effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note or lost note affidavit and indemnity (endorsed as
described in clause 2.2.1) required to be delivered to or on behalf of Trustee
or Master Servicer pursuant to this Section 2 on or before the Closing Date is
not so delivered, or is not properly executed or is defective on its face, and
Purchaser's acceptance of the related Mortgage Loan on the Closing Date shall in
no way constitute a waiver of such omission or defect or of Purchaser's or its
successors' and assigns' rights in respect thereof pursuant to Section 5.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
Seller shall (i) deliver to Purchaser on or before the Closing Date a diskette
acceptable to Purchaser that contains such information about the Mortgage Loans
as may be reasonably requested by Purchaser, (ii) deliver to Purchaser investor
files (collectively the "Collateral Information") with respect to the assets
proposed to be included in the Mortgage Pool and made available at Purchaser's
headquarters in New York, and (iii) otherwise cooperate fully with
11
Purchaser in its examination of the credit files, underwriting documentation and
Mortgage Files for the Mortgage Loans and its due diligence review of the
Mortgage Loans. The fact that Purchaser has conducted or has failed to conduct
any partial or complete examination of the credit files, underwriting
documentation or Mortgage Files for the Mortgage Loans shall not affect the
right of Purchaser or Trustee to cause Seller to cure any Material Document
Defect or Material Breach (each as defined below), or to repurchase or replace
the defective Mortgage Loans pursuant to Section 5 hereof.
On or prior to the Closing Date, Seller shall allow representatives of any of
Purchaser, each Underwriter, the Initial Purchaser, Trustee, Special Servicer
and each Rating Agency to examine and audit all books, records and files
pertaining to the Mortgage Loans, Seller's underwriting procedures and Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of Seller during normal business hours and shall not be conducted in a manner
that is disruptive to Seller's normal business operations upon reasonable prior
advance notice. In the course of such examinations and audits, Seller will make
available to such representatives of any of Purchaser, each Underwriter, each
Initial Purchaser, Trustee, Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and Seller shall cooperate fully with any
such examination and audit in all material respects. On or prior to the Closing
Date, Seller shall provide Purchaser with all material information regarding
Seller's financial condition and access to knowledgeable financial or accounting
officers for the purpose of answering questions with respect to Seller's
financial condition, financial statements as provided to Purchaser or other
developments affecting Seller's ability to consummate the transactions
contemplated hereby or otherwise affecting Seller in any material respect.
Within 45 days after the Closing Date, Seller shall provide Master Servicer or
Primary Servicer, if applicable, with any additional information identified by
Master Servicer or Primary Servicer, if applicable, as necessary to complete the
CMSA Property File, to the extent that such information is available.
Purchaser may exercise any of its rights hereunder through one or more designees
or agents, provided Purchaser has provided Seller with prior notice of the
identity of such designee or agent.
Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in
12
Seller's efforts to obtain a protective order or other reasonable assurance that
confidential treatment will be accorded such information and, if in the absence
of a protective order or such assurance, Purchaser is compelled as a matter of
law to disclose such information, Purchaser shall, prior to making such
disclosure, advise and consult with Seller and its counsel as to such disclosure
and the nature and wording of such disclosure and Purchaser shall use reasonable
efforts to obtain confidential treatment therefor. Notwithstanding the
foregoing, if reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to make such disclosure immediately, then
Purchaser shall be permitted to make such disclosure without prior review by
Seller.
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
To induce Purchaser to enter into this Agreement, Seller hereby makes for the
benefit of Purchaser and its assigns with respect to each Mortgage Loan (subject
to the last paragraph of this Section 4.1) as of the date hereof (or as of such
other date specifically set forth in the particular representation and warranty)
each of the representations and warranties set forth on Exhibit 2 hereto, except
as otherwise set forth on Schedule A attached thereto, and hereby further
represents and warrants to Purchaser as of the date hereof that:
Seller is duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of New York. Seller has the
requisite power and authority and legal right to own the Mortgage Loans and to
transfer and convey the Mortgage Loans to Purchaser and has the requisite power
and authority to execute and deliver, engage in the transactions contemplated
by, and perform and observe the terms and conditions of, this Agreement.
This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship or
moratorium, (B) other laws relating to or affecting the rights of creditors
generally, (C) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of
13
such consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by Seller
under this Agreement.
Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of Seller, or in
any material impairment of the right or ability of Seller to carry on its
business substantially as now conducted.
There are no actions or proceedings against, or investigations of, Seller
pending or, to Seller's knowledge, threatened in writing against Seller before
any court, administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer of the
Mortgage Loans to Purchaser or the execution or delivery by, or enforceability
against, Seller of this Agreement or have an effect on the financial condition
of Seller that would materially and adversely affect the ability of Seller to
perform its obligations under this Agreement.
On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
To Seller's knowledge, the MSMCH Mortgage Loan Information (as defined in
that certain indemnification agreement, dated July 26, 2007, between Seller,
Purchaser, the Underwriters and the Initial Purchaser (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (when read together with the Final Prospectus Supplement,
in the case of Public Certificates, or when read together with the Memorandum,
in the case of the Private Certificates). Notwithstanding anything contained
herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the
benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants
that the foregoing representations and warranties and those set forth on Exhibit
2 hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will
be true and correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date, provided that
14
any representations and warranties made as of a specified date shall be true and
correct in all material respects as of such specified date.
Seller has complied with the disclosure requirements of Regulation AB that
arise from its role as "seller" and "sponsor" in connection with the issuance of
the Certificates.
Seller hereby agrees to deliver to Purchaser (or with respect to any
Serviced Companion Mortgage Loan that is deposited into an Other Securitization,
the depositor in such Other Securitization) and Trustee any disclosure
information relating to any event specifically related to Seller as required to
be reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in formatting
reasonably appropriate for inclusion in such form), including, without
limitation, the disclosure required under Items 1117 and 1119 of Regulation AB
and Item 1.03 to Form 8-K. Seller shall use its best efforts to deliver proposed
disclosure language relating to any event described under Items 1117 and 1119 of
Regulation AB and Item 1.03 to Form 8-K to Trustee and Purchaser within one
Business Day and in any event no later than two Business Days of Seller becoming
aware of such event and shall provide disclosure relating to any other event
required to be disclosed on Form 8-K, Form 10-D or Form 10-K within two Business
Days following Purchaser's request for such disclosure language. The obligation
of Seller to provide the above-referenced disclosure materials will terminate
upon notice or other written confirmation from Purchaser or Trustee that Trustee
has filed a Form 15 with respect to the Trust as to that fiscal year in
accordance with Section 13.8 of the Pooling and Servicing Agreement or the
reporting requirements with respect to the Trust under the Securities Exchange
Act of 1934, as amended, have otherwise been automatically suspended. Seller
hereby acknowledges that the information to be provided by it pursuant to this
Section will be used in the preparation of reports meeting the reporting
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
To induce Seller to enter into this Agreement, Purchaser hereby represents and
warrants to Seller as of the date hereof:
Purchaser is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware with full power and authority
to carry on its business as presently conducted by it.
Purchaser has full power and authority to acquire the Mortgage Loans, to
execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general
15
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
Neither the purchase of the Mortgage Loans nor the execution, delivery and
performance of this Agreement by Purchaser will violate Purchaser's certificate
of incorporation or by-laws or constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under, or result in
a breach of, any material agreement, contract, instrument or indenture to which
Purchaser is a party or that may be applicable to Purchaser or its assets.
Purchaser's execution and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will not constitute a violation
of any law, rule, writ, injunction, order or decree of any court, or order or
regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
Purchaser has not dealt with any broker, investment banker, agent or other
person, other than Seller, the Underwriters, the Initial Purchaser and their
respective affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or consummation of any of the
transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants
that the foregoing representations and warranties will be true and correct in
all material respects on and as of the Closing Date with the same effect as if
made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to
this Section 4.2 shall survive the purchase of the Mortgage Loans.
REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
16
It is hereby acknowledged that Seller shall make for the benefit of Trustee on
behalf of the holders of the Certificates, whether directly or by way of
Purchaser's assignment of its rights hereunder to Trustee, the representations
and warranties set forth on Exhibit 2 hereto (each as of the date hereof unless
otherwise specified).
It is hereby further acknowledged that if any document required to be delivered
to Trustee pursuant to Section 2 is not delivered as and when required (and
including the expiration of any grace or cure period), is not properly executed
or is defective on its face, or if there is a breach of any of the
representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph 42 of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, Master Servicer shall, and Special Servicer may, request that Seller,
not later than 90 days from Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90 day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage"(as defined in the Code)
but Seller is diligently attempting to effect such correction or cure, as
certified by Seller in an Officer's Certificate delivered to Trustee, then the
cure period will be extended for an additional 90 days unless, solely in the
case of a Material Document Defect, (x) the Mortgage Loan is, at the end of the
initial 90 day period, then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to Seller by Trustee pursuant to Section
2.2 of the Pooling and Servicing Agreement not less than 90 days prior to the
delivery of the notice of such Material Document Defect. The parties acknowledge
that neither delivery of a certification or schedule of exceptions to Seller
pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor
possession of such certification or schedule by Seller shall, in and of itself,
constitute delivery of notice of any Material Document Defect or knowledge or
awareness by Seller of any Material Document Defect listed therein.
Seller hereby covenants and agrees that, if any such Material Document Defect or
Material Breach cannot be corrected or cured in all material respects within the
above cure periods, Seller shall, on or before the termination of such cure
periods, either (i) repurchase the affected
17
Mortgage Loan or REO Mortgage Loan from Purchaser or its assignee at the
Purchase Price as defined in the Pooling and Servicing Agreement, or (ii) if
within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option replace,
without recourse, any Mortgage Loan or REO Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such Material Document
Defect or Material Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code), then notwithstanding the previous
sentence or the previous paragraph, repurchase or substitution must occur within
90 days from the date Seller was notified of the breach or defect. Seller agrees
that any substitution shall be completed in accordance with the terms and
conditions of the Pooling and Servicing Agreement.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated above (a
"Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to repurchase or replace each such Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case of such breach
or document defect, (A) Seller provides a Nondisqualification Opinion to Trustee
at the expense of Seller if Trustee acting at the direction of the Controlling
Class determines that it would be usual and customary in accordance with
industry practice to obtain a Nondisqualification Opinion and (B) both of the
following conditions would be satisfied if Seller were to repurchase or replace
only those Mortgage Loans as to which a Material Breach or Material Document
Defect had occurred without regard to this paragraph (the "Affected Loan(s)"):
(i) the debt service coverage ratio for all such other Mortgage Loans (excluding
the Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the greater of (A) the debt service
coverage ratio for all such Crossed Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (B) 1.25x, and (ii) the loan-to-value ratio for all
such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (A) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (B) 75%. The determination
of Master Servicer as to whether the conditions set forth above have been
satisfied shall be conclusive and binding in the absence of manifest error.
Master Servicer will be entitled to cause to be delivered, or direct Seller to
(in which case Seller shall) cause to be delivered to Master Servicer: (A) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of Seller if the scope and cost of the
Appraisal is approved by Seller (such approval not to be unreasonably withheld)
and (B) an opinion of counsel that not requiring the repurchase of each such
Crossed Mortgage Loan will not result in an Adverse REMIC Event.
18
With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while Trustee (as assignee of
Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
Upon occurrence (and after any applicable cure or grace period), any of the
following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity that appears to be regular on its face; (b) the
absence from the Mortgage File of the original signed Mortgage that appears to
be regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the Mortgage
was recorded; or (c) the absence from the Mortgage File of the item specified in
paragraph 2.2.8. If any of the foregoing Material Document Defects is discovered
by the Custodian (or Trustee if there is no Custodian), Trustee (or as set forth
in Section 2.3(a) of the Pooling and Servicing Agreement, Master Servicer) will
take the steps described elsewhere in this Section, including the giving of
notices to the Rating Agencies and the parties hereto and making demand upon
Seller for the cure of the Material Document Defect or repurchase or replacement
of the related Mortgage Loan.
If Seller disputes that a Material Document Defect or Material Breach exists
with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction
or cure of such Material Document Defect or Material Breach, (ii) to repurchase
the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling
19
and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than Seller shall
be without (i) recourse of any kind (either express or implied) by such Person
against Seller and (ii) representation or warranty of any kind (either express
or implied) by Seller to or for the benefit of such Person.
Seller shall have the right to purchase certain of the Mortgage Loans or REO
Properties, as applicable, in accordance with Section 9.36 of the Pooling and
Servicing Agreement.
The fact that a Material Document Defect or Material Breach is not discovered
until after foreclosure (but in all instances prior to the sale of the related
REO Property or Mortgage Loan) shall not prejudice any claim against Seller for
repurchase of the REO Mortgage Loan or REO Property. In such an event, Master
Servicer shall notify Seller of the discovery of the Material Document Defect or
Material Breach and Seller shall have 90 days to correct or cure such Material
Document Defect or Material Breach or purchase the REO Property at the Purchase
Price. After a final liquidation of the Mortgage Loan or REO Mortgage Loan, if a
court of competent jurisdiction issues a final order that Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan after the
expiration of any applicable appeal period (a "Final Judicial Determination") or
Seller otherwise accepts liability, then, but in no event later than the
Termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, Seller will be obligated to pay to the Trust the difference between
any Liquidation Proceeds received upon such liquidation in accordance with the
Pooling and Servicing Agreement (including those arising from any sale to
Seller) and the Purchase Price.
Notwithstanding anything to the contrary contained herein, in connection with
any sale or other liquidation of a Mortgage Loan or REO Property as described in
this Section 5, Special Servicer shall not receive a Liquidation Fee from Seller
(but may collect such Liquidation Fee from the related Liquidation Proceeds as
otherwise provided herein) unless Seller is required to repurchase such Mortgage
Loan or REO Property and such Mortgage Loan or REO Property is repurchased after
the date that is 90 (or if the Seller is diligently attempting to cure such
Material Breach or Material Document Defect, 180) days or more after the Seller
receives notice of the breach or defect causing the repurchase; provided,
however, that in the event Seller is obligated to repurchase the Mortgage Loan
or REO Mortgaged Property after a final liquidation of such Mortgage Loan or REO
Property pursuant to the immediately preceding paragraph, an amount equal to any
Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Mortgaged Property. Except as expressly set
forth above, no Liquidation Fee shall be payable in connection with a repurchase
of a Mortgage Loan by Seller.
The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit
20
Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 of Exhibit 2 hereto
because the underlying loan documents do not provide for the payment by the
Mortgagor of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan, and the related Mortgagor's payments made for the
reasonable costs and expenses associated with the defeasance or assumption of a
Mortgage Loan are insufficient and cause the Trust to incur an Additional Trust
Expense in an amount equal to such reasonable costs and expenses not paid by
such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within
90 days of the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. The parties hereto acknowledge that such
reimbursement shall be Seller's sole obligation with respect to the breach
discussed in the previous sentence.
Notwithstanding the foregoing, Seller has retained the right to designate and
establish the successor borrower and to purchase or cause the purchase on behalf
of the related borrower of the related defeasance collateral ("MSMCH Defeasance
Rights and Obligations"). In the event the Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan subject to defeasance, the
Pooling and Servicing Agreement provides that the Master Servicer shall provide
upon receipt of such notice, written notice of such defeasance request to Seller
or its assignee. Until such time as Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with MSMCH Defeasance Rights
and Obligations shall be delivered to MSMCH pursuant to the notice provisions of
the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement shall provide that Trustee (or Master
Servicer or Special Servicer on its behalf) shall give written notice promptly
(but in any event within three Business Days) to Seller of its discovery of any
Material Document Defect or Material Breach and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan
(as defined in the Pooling and Servicing Agreement).
If Seller repurchases any Mortgage Loan pursuant to this Section 5, Purchaser or
its assignee, following receipt by Trustee of the Purchase Price therefor,
promptly shall deliver or cause to be delivered to Seller all Mortgage Loan
documents with respect to such Mortgage Loan, and each document that constitutes
a part of the Mortgage File that was endorsed or assigned to Trustee shall be
endorsed and assigned to Seller in the same manner such that Seller shall be
vested with legal and beneficial title to such Mortgage Loan, in each case
without recourse, including any property acquired in respect of such Mortgage
Loan or proceeds of any insurance policies with respect thereto.
CLOSING.
The closing of the sale of the Mortgage Loans shall be held at the offices of
Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
21
All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date, provided that any representations and warranties
made as of a specified date shall be true and correct as of such specified date
(to the extent of the standard, if any, set forth in each representation and
warranty).
All Closing Documents specified in Section 7 hereof, in such forms as are
agreed upon and reasonably acceptable to Seller or Purchaser, as applicable,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof.
Seller shall have delivered and released to Purchaser or its designee all
documents required to be delivered to Purchaser as of the Closing Date pursuant
to Section 2 hereof.
The result of the examination and audit performed by Purchaser and its
affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser and
its affiliates in their sole determination and the parties shall have agreed to
the form and contents of the MSMCH Mortgage Loan Information to be disclosed in
the Memorandum and the Prospectus Supplement.
All other terms and conditions of this Agreement required to be complied
with on or before the Closing Date shall have been complied with, and Seller and
Purchaser shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date.
Seller shall have paid all fees and expenses payable by it to Purchaser
pursuant to Section 8 hereof.
The Certificates to be so rated shall have been assigned ratings by each
Rating Agency no lower than the ratings specified for each such Class in the
Memorandum and the Prospectus Supplement.
No Underwriter shall have terminated the Underwriting Agreement and the
Initial Purchaser shall not have terminated the Certificate Purchase Agreement,
and neither the Underwriters nor the Initial Purchaser shall have suspended,
delayed or otherwise cancelled the Closing Date.
Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective obligations
hereunder in a manner that will enable Purchaser to purchase the Mortgage Loans
on the Closing Date.
CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
This Agreement duly executed by Purchaser and Seller.
A certificate of Seller, executed by a duly authorized officer of Seller and
dated the Closing Date, and upon which Purchaser and its successors and assigns
may rely, to the effect that: (i)
22
the representations and warranties of Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
True, complete and correct copies of Seller's articles of organization and
by-laws or other organizational documents.
A certificate of existence for Seller from the Secretary of State of New York
dated not earlier than 30 days prior to the Closing Date.
A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
Seller is validly existing under New York law and has full corporate or
organizational power and authority to enter into and perform its obligations
under this Agreement.
This Agreement has been duly authorized, executed and delivered by Seller.
No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
23
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship or
moratorium, (2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
A "10b-5" opinion of counsel addressed to Purchaser and the Underwriters, in
form reasonably acceptable to Purchaser and the Underwriters, as to the
disclosure provided by Seller to Purchaser in connection with the Certificates.
An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as such term is defined in Regulation AB)
in connection with the Certificates. Such other opinions of counsel as any
Rating Agency may request in connection with the sale of the Mortgage Loans by
Seller to Purchaser or Seller's execution and delivery of, or performance under,
this Agreement.
A letter from Deloitte & Touche, certified public accountants, dated the date
hereof, to the effect that they have performed certain specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
Such further certificates, opinions and documents as Purchaser may reasonably
request.
An officer's certificate of Purchaser, dated as of the Closing Date, with the
resolutions of Purchaser authorizing the transactions described herein attached
thereto, together with certified
24
copies of the charter, by-laws and certificate of good standing of Purchaser
dated not earlier than 30 days prior to the Closing Date.
Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
An executed Xxxx of Sale in the form attached hereto as Exhibit 3.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend (or such other address as may hereafter
be furnished in writing by Purchaser), or if (ii) to Seller, addressed to Seller
at Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxx (or to such other address as Seller may
designate in writing).
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such
instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed
25
to be relied upon by the other party, notwithstanding any investigation
heretofore or hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to Trustee as
may be required to effect the purposes of the Pooling and Servicing Agreement
and, upon such assignment, Trustee shall succeed to the rights and obligations
hereunder of Purchaser. No owner of a Certificate issued pursuant to the Pooling
and Servicing Agreement shall be deemed a successor or permitted assigns because
of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. The rights and obligations of Seller under this
Agreement shall not be assigned by Seller without the prior written consent of
Purchaser, except that any person into which Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Seller is a party, or any person succeeding to the entire
business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof (other than
the Letter of Understanding (solely with respect to those portions of this
Agreement that are not assigned to Trustee), the Indemnification Agreement and
the Pooling and Servicing Agreement), and
26
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
27
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE CAPITAL
HOLDINGS LLC
By:__________________________________
Name:_____________________________
Title:____________________________
XXXXXX XXXXXXX CAPITAL I INC.
By:__________________________________
Name:_____________________________
Title:____________________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
o Mortgage Loan Seller
o Loan Number
o Property Name
o Street Address
o City
o State
o Date of Maturity
o Cut-off Date Balance
o Note Date
o Original Term to Maturity or ARD
o Remaining Term
o Original Amortization
o Rate
o ARD Loan (Yes/No)
1-1
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is true and correct in all material respects as of the date of
this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. Upon the consummation of the transactions contemplated by this
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to each Mortgage Loan free
and clear of any pledge, lien, charge, security interest or other encumbrance.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained. None of the Mortgage Loan documents restricts the Seller's
right to transfer the Mortgage Loan to the Purchaser or to the Trustee.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder
2-1
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property, any personal
property leases applicable to such personal property and any Permitted
Encumbrances. Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of Uniform Commercial Code financing statements are required in order to effect
such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13 below
and any Permitted Encumbrances, enforceable first priority lien and first
priority security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the Trustee
and is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases. If an Assignment
of Leases exists with respect to any Mortgage Loan (whether as a part of the
related Mortgage or separately), then the related Mortgage or related Assignment
of Leases, subject to applicable law, provides for, upon an event of default
under the Mortgage Loan, the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or for rents to be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since July 12, 2007.
7. Condition of Property; Condemnation. Except with respect to Mortgage
Loans secured primarily by unimproved land: (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2,
2-2
each Mortgaged Property is, to the Seller's knowledge, free and clear of any
damage (or adequate reserves therefor have been established based on the
engineering report) that would materially and adversely affect its value as
security for the related Mortgage Loan, and (ii) with respect to the Mortgaged
Properties securing the Mortgage Loans that were not the subject of an
engineering report 18 months prior to the Closing Date as set forth on Schedule
A to this Exhibit 2, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the Title Policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of, or notice to, the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to, a public road.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose that were to have been
complied with on or before the Closing Date, or any such funds so escrowed have
not been released.
2-3
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1)
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage Loans
that were the subject of an environmental site assessment after the
first day of the month that is 18 months prior to the Closing Date,
an environmental site assessment, or an update of a previous such
report, was performed with respect to each Mortgaged Property in
connection with the origination or the acquisition of the related
Mortgage Loan, a report of each such assessment (or the most recent
assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the
Seller has no knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property that was
not disclosed in such report. Each Mortgage requires the related
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations. Where such assessment disclosed
the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not
related to the Mortgagor was identified as the responsible party for
such condition or circumstance or (ii) environmental insurance
covering such condition was obtained or must be maintained until the
condition is remediated or (iii) the related Mortgagor was required
either to provide additional security that was deemed to be
sufficient by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has
represented in such Environmental Report or in a supplement letter
that the environmental assessment of the applicable Mortgaged
Property was conducted utilizing generally accepted Phase I industry
standards using the American Society for Testing and Materials
(ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment
meeting ASTM standards after the first day of the month that is 18
months prior to the Closing Date as set forth on Schedule A to this
Exhibit 2, (i) no Hazardous Material is present on such Mortgaged
Property such that (1) the value, use or operation of such Mortgaged
Property is materially and adversely affected or (2) under
applicable federal, state
2-4
or local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value of
the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence of
such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged
Property is in material compliance with all applicable federal,
state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not
have a material adverse effect on the value of such Mortgaged
Property and neither the Seller nor, to the Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance, material or
waste as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials
Transportation Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. xx.xx.
6901 et seq.), the Federal Water Pollution Control Act as amended
(33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act (42 U.S.C. xx.xx.
1251 et seq.) and any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, 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 enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated like properties in the locality of
the Mortgaged Property (so-called "All Risk" coverage) in an amount not less
than the lesser of the principal balance of the related Mortgage
2-5
Loan and the replacement cost of the improvements located at the Mortgaged
Property, and contains no provisions for a deduction for depreciation, and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; (b) a business interruption
or rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property; (c) a flood insurance policy (if any
portion of buildings or other structures on the Mortgaged Property are located
in an area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires flood
insurance to be maintained); and (d) a comprehensive general liability insurance
policy in amounts as are generally required by commercial mortgage lenders for
properties of similar types and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause that
names the mortgagee as an additional insured in the case of liability insurance
policies and as a loss payee in the case of property insurance policies and
requires prior notice to the holder of the Mortgage of termination or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage obligates the
related Mortgagor to maintain all such insurance and, upon such Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement therefor
from such Mortgagor. Each Mortgage provides that casualty insurance proceeds
will be applied (a) to the restoration or repair of the related Mortgaged
Property, (b) to the restoration or repair of the related Mortgaged Property,
with any excess insurance proceeds after restoration or repair being paid to the
Mortgagor, or (c) to the reduction of the principal amount of the Mortgage Loan.
For each Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either:
(i) a seismic report which indicated a PML of less than 20% was prepared, based
on a 450- or 475-year lookback with a 10% probability of exceedance in a 50-year
period, in connection with the origination of the Mortgage Loan secured by such
Mortgaged Property or (ii) the improvements for the Mortgaged Property are
insured against earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between the Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
does not prohibit the current use of the
2-6
Mortgaged Property and does not prohibit the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and the Trustee as its assignee upon notice to, but
without the consent of, the lessor thereunder (or, if such consent
is required, it has been obtained prior to the Closing Date) and, in
the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor or if such lessor's
consent is required it or it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the
Seller has received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no
condition that, but for the passage of time or the giving of notice,
or both, would result in an event of default under the terms of such
Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied
either (A) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
2-7
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property
in the lending area where the Mortgaged Property is located; and
such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage;
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in
a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
2-8
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, except, in each case, for liens insured against by
the Title Policy referred to herein, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all material applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined release price and prepayment consideration in connection
therewith. Except as described in the first sentence hereof and for those
Mortgage Loans identified on Schedule A, no Mortgage Loan permits the full or
partial release or substitution of collateral unless the mortgagee or servicer
can require the Mortgagor to provide an opinion of tax counsel to the effect
that such release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. ss.1.860G-2(b)(2) and (b) would not cause such Mortgage Loan to fail to be
a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
The loan documents require the related Mortgagor to bear the cost of such
opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the
2-9
giving of notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to the
extent the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach, violation
or event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller elsewhere in
this Exhibit 2 or the exceptions listed in Schedule A attached hereto.
28. Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing, Collection and Origination Practices. The servicing,
collection and origination practices (a) used by the Seller have been in all
material respects legal, proper and prudent and have met customary industry
standards or (b) to the Seller's knowledge, used by any prior holder or servicer
of each Mortgage Loan have been in all material respects legal, proper and
prudent and have met customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
2-10
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to Seller's knowledge (a) the related
Mortgagor is in compliance in all material respects with all federal and state
laws applicable to the use and operation of the related Mortgaged Property and
(b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
2-11
39. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that it can be defeased until
a date that is more than two years after the Closing Date, or provides that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Authorized to do Business. To the extent required under applicable
law as of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
42. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
43. Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not, as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
44. Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage
2-12
Loan operating statements and (if there is more than one tenant) rent rolls
and/or financial statements of the Mortgagor annually), and such other
information as may be required therein.
45. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulation
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulation
Sections 1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as
a qualified mortgage, or any substantially similar provision).
46. No Fraud in Origination. A court of competent jurisdiction will not
find, in a final non-appealable judgment, that an employee of Seller actively
participated with the Borrower in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Borrower is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
48. Foreclosure Property. The Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to the Purchaser,
and the Seller does not know or, to the Seller's knowledge, have reason to know
that any Mortgage Loan will default. The representations in this paragraph 48
are made solely for the purpose of determining whether the Mortgaged Property,
if acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
49. With respect to each Mortgage Loan secured by a hospitality property
with respect to which a franchisor comfort letter exists, (A) all steps
necessary for the Trust to have the full benefit of the comfort letter have been
taken or shall be taken by the Seller within the timeframes contemplated under
such comfort letter, including, without limitation, notification by the Seller
to the franchisor of any assignment by the Seller of such comfort letter to the
Trust, or (B) the related franchisor has delivered to the Trustee a replacement
comfort letter in favor of the Trust containing the same terms and conditions as
the original comfort letter.
2-13
SCHEDULE A TO EXHIBIT 2
Exceptions to Representations and Warranties
SCHEDULE B TO EXHIBIT 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
SCHEDULE C TO EXHIBIT 2
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
Mortgage Loan No. 2 - Parkoff Portfolio
3-1
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 26, 2007 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount equal to [_].
4. Definitions. Terms used but not defined herein shall have the +
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this __ day of July, 2007.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL
HOLDINGS LLC
By: ____________________________________
Name: ______________________________
Title: _____________________________
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ____________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
I-2
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
Substantially Similar to the Information
Repeated in the Form of Statement to
Certificateholders in the
Prospectus Supplement
EXHIBIT N
FORM OF CMSA OPERATING STATEMENT ANALYSIS REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
EXHIBIT O
[RESERVED]
EXHIBIT P
[RESERVED]
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, National Association
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2007-HQ12
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee and custodian for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12 ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of July 1, 2007 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Master Servicer under the Pooling and Servicing
Agreement ("Xxxxx Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Xxxxx Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of , 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee and custodian for Xxxxxx
Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2007-HQ12
By: ____________________________________
Name:___________________________________
Title: _________________________________
I-3
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ____________________________ before me, _______________________________
Date Name and Title of Officer
(i.e., Your Name, Notary
Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
LNR PARTNERS, INC.
AND WHEN RECORDED MAIL TO:
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq.
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee and custodian for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ12 ("Trustee"), under that certain
Pooling and Servicing Agreement dated as of July 1, 2007 (the "Pooling and
Servicing Agreement"), does hereby nominate, constitute and appoint LNR
PARTNERS, INC., as special servicer under the Pooling and Servicing Agreement
(the "Special Servicer"), as its true and lawful attorney-in-fact for it and in
its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Special Servicer to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Special Servicer of its duties as Special Servicer under the Pooling and
Servicing Agreement, giving and granting unto Special Servicer full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Special Servicer shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of __________, 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee and custodian for Xxxxxx
Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2007-HQ12
By: ____________________________________
Name: __________________________________
Title: _________________________________
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ____________________________ before me, _______________________________
Date Name and Title of Officer
(i.e., Your Name, Notary
Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimated stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U
[RESERVED]
EXHIBIT V
[RESERVED]
EXHIBIT W
RESTRICTED SERIVER REPORTS
[Available at CMSA Website Version 3.0 dated 4/1/2003]
EXHIBIT X
UNRESTRICTD SERVICER REPORTS
[Available at CMSA Website Version 3.0 dated 4/1/2003]
EXHIBIT Y
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
- Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ12
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12
In accordance with the Pooling and Servicing Agreement, dated as of July
1, 2007 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee and Custodian, and Xxxxx Fargo Bank, National Association as
Paying Agent, Certificate Registrar and Authenticating Agent (the "Paying
Agent"), with respect to the above referenced certificates (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making
an evaluation in connection with purchasing the related Certificates, from
its accountants and attorneys, and otherwise from such governmental or
banking authorities or agencies to which the undersigned is subject), and
such Information will not, without the prior written consent of the Paying
Agent, be otherwise disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner which
could result in a violation of any provision of the Securities Act of 1933,
as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the Securities
Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_________________________________________
Beneficial Owner or Prospective Purchaser
By: _____________________________________
Title: __________________________________
Company: ________________________________
Phone: __________________________________
S-2-2
EXHIBIT Z
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5%
OF OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn:
From: _____________________________________, in its capacity as Servicer
(the "Servicer") under the Pooling and Servicing Agreement dated as
of __________________ (the "Pooling and Servicing Agreement"), among the
Servicer, __________________as Trustee, and others.
Date: _________, 20___
Re: _______________________________________.
Commercial Mortgage Pass-Through Certificates
Series ___________
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. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the payments scheduled to
be due in respect of the entire Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled
to be due in respect of a portion of the
Principal Balance of the Mortgage Loan that
represents ___% of the entire
Principal Balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan
amount of $____________ or _______% of the
entire Principal Balance;
Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on EXHIBIT A hereto, which
exceptions the Servicer has determined, consistent with the Servicing Standard,
will have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
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.
The defeasance was consummated on __________, 20__.
The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by Standard & Poor's, (iv) if they include a principal obligation,
the principal due at maturity cannot vary or change, and (v) are not
subject to prepayment, call or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an Adverse REMIC Event.
The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") as to which one of the
statements checked below is true:
____ the related Mortgagor was a Single-Purpose
Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance
Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the
date of the defeasance, and after the
defeasance owns no assets other than the
defeasance collateral and real property
securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a
Single-Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral; or
S-2-2
____ the Servicer designated a Single-Purpose
Entity (as defined in the S&P Criteria)
established for the benefit of the Trust to
own the defeasance collateral.
The Servicer received a broker or similar confirmation of the
credit, or the accountant's letter described below contained statements
that it reviewed a broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which account is
maintained as a securities account by the Trustee acting as a securities
intermediary.
The Paying Agent or a securities intermediary on its behalf is
obligated to make the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the 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").
The Servicer received from the Mortgagor written confirmation
from a firm of independent certified public accountants, who were approved
by Servicer in accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the defeasance
collateral (without taking into account any earnings on reinvestment of
such revenues) will be sufficient to timely pay each of the Scheduled
Payments after the defeasance including the payment in full of the
Mortgage Loan (or the allocated portion thereof in connection with a
partial defeasance) on its Maturity Date (or, in the case of an ARD Loan,
on its Anticipated Repayment Date), (ii) the revenues received in any
month from the defeasance collateral will be applied to make Scheduled
Payments within four (4) months after the date of receipt, and (iii)
interest income from the defeasance collateral to the Defeasance Obligor
in any calendar or fiscal year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the allocated portion thereof
in a partial defeasance) for such year.
The Servicer received opinions from counsel, who were approved
by Servicer in accordance with the Servicing Standard, that (i) the
agreements executed by the Mortgagor and/or the Defeasance Obligor in
connection with the defeasance are enforceable against them in accordance
with their terms, and (ii) the Trustee will have a perfected, first
priority security interest in the defeasance collateral described above.
The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit
release of surplus defeasance collateral and earnings on reinvestment to
the Defeasance Obligor or the Mortgagor only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and
S-2-3
the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
The entire Principal Balance of the Mortgage Loan as of the
date of defeasance was $___________ [$5,000,000 OR LESS OR LESS THAN ONE
PERCENT OF POOL BALANCE, WHICHEVER IS LESS] which is less than 1% of the
Aggregate Certificate Balance of the Certificates as of the date of the
most recent Paying Agent's Monthly Certificateholder Report received by us
(the "Current Report").
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.
Certify that, in addition to the foregoing, Servicer has imposed
such additional conditions to the defeasance, subject to the limitations imposed
by the Mortgage Loan Documents, as are consistent with the Servicing Standard.
Certify that EXHIBIT B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and delivered in connection with
the defeasance described above and that originals or copies of such agreements,
instruments and opinions have been transmitted to the Trustee for placement in
the related Mortgage File or, to the extent not required to be part of the
related Mortgage File, are in the possession of the Servicer as part of the
Servicer's Mortgage File.
Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement.
Certify that the individual under whose hand the Servicer has caused
this Notice and Certification to be executed did constitute a Servicing Officer
as of the date of the defeasance described above.
Agree to provide copies of all items listed in EXHIBIT B to you upon
request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER: _________________________________
By: ________________________________________
Name:
Title:
S-2-4
EXHIBIT AA
Form of Primary Servicing Agreement
(Xxxxx Fargo)
________________________________
PRIMARY SERVICING AGREEMENT
DATED AS OF _________, ____
________________________________
[____________________________________________]
AS MASTER SERVICER,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS PRIMARY SERVICER,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 1, 2007
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS MASTER SERVICER,
LNR PARTNERS, INC.
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION
AS TRUSTEE AND CUSTODIAN
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ12
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS ....................................................................1
ARTICLE II. PRIMARY SERVICING ..............................................................8
Section 2.1 Primary Servicing .....................................................8
Section 2.2 Standard of Care .....................................................15
Section 2.3 Compensation and Other Payments to the Primary Servicer ..............15
Section 2.4 Primary Servicer Representations and Warranties ......................16
ARTICLE III. DOCUMENTS AND OTHER MATTERS ...................................................17
Section 3.1 Segregation of Mortgage Loan Documents ...............................17
Section 3.2 Access to Documents; Provision of Certain Information ................17
ARTICLE IV. MASTER SERVICER ASSISTANCE ....................................................17
Section 4.1 Master Servicer Assistance ...........................................17
Section 4.2 Specially Serviced Mortgage Loans ....................................18
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS .........................................18
Section 5.1 Notice of Litigation .................................................18
Section 5.2 No Personal Solicitation .............................................18
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy ..............19
Section 5.4 Primary Servicer's Financial Statements and Related Information ......20
Section 5.5 No Advancing .........................................................20
Section 5.6 REMIC Compliance .....................................................20
Section 5.7 Inspection Rights ....................................................20
Section 5.8 Authorized Officer ...................................................20
Section 5.9 Additional Reports ...................................................21
Section 5.10 Prepayment Interest Shortfalls and Excesses ..........................21
Section 5.11 Consents .............................................................22
Section 5.12 Quarterly Servicing Accounts Reconciliation Certification ............22
Section 5.13 Exchange Act Reports; Annual Compliance Documents ....................22
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION OBLIGATIONS ...........23
Section 6.1 Primary Servicer Default .............................................23
Section 6.2 Termination ..........................................................24
Section 6.3 Post-Termination Obligations .........................................25
Section 6.4 Additional Termination ...............................................26
ARTICLE VII. SUBCONTRACTORS.................................................................26
-i-
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER ............26
ARTICLE IX. INDEMNIFICATION ...............................................................27
Section 9.1 Primary Servicer's Indemnity .........................................27
ARTICLE X. MISCELLANEOUS..................................................................27
Section 10.1 Severability .............................................................27
Section 10.2 Rights Cumulative; Waivers ...............................................28
Section 10.3 Headings .................................................................28
Section 10.4 Construction .............................................................28
Section 10.5 Assignment ...............................................................28
Section 10.6 Prior Understandings .....................................................29
Section 10.7 Integrated Agreement .....................................................30
Section 10.8 Counterparts .............................................................30
Section 10.9 Governing Laws ...........................................................30
Section 10.10 Notices .................................................................30
Section 10.11 Amendment ...............................................................30
Section 10.12 Other ...................................................................31
Section 10.13 Benefits of Agreement ...................................................31
-ii-
This PRIMARY SERVICING AGREEMENT, dated and effective as of _________,
____, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (in the capacity of
primary servicer, the "Primary Servicer") and
[_______________________________________], a _________________________, acting
solely in its capacity as Master Servicer under the Pooling and Servicing
Agreement (as defined below) (the "Master Servicer").
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, LNR Partners, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as paying agent, certificate
registrar and authenticating agent, and LaSalle Bank National Association, as
trustee and custodian, have entered into a Pooling and Servicing Agreement,
dated as of July 1, 2007, relating to the Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (as amended, from time to time, the "Pooling and
Servicing Agreement"), a copy of which is attached hereto as Exhibit A; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
and provide, on behalf of the Master Servicer, the necessary servicing of such
mortgage loans performed in a manner consistent with the Servicing Standard and
in a manner consistent with this Agreement and the Pooling and Servicing
Agreement from the Closing Date until this Agreement is terminated in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Primary Servicer and the Master Servicer hereby agree as
follows:
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided,
however, that terms whose meanings are ascribed in the Pooling and Servicing
Agreement and by the provisions thereof pertain to one or more mortgage loans
that are the subject of the Pooling and Servicing Agreement shall be construed
for purposes of this Agreement to pertain to the related Mortgage Loan(s) that
are the subject of this Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan, the
related co-lender agreement, by and between the holder of the related Mortgage
Loan and the holder of the related B Note, setting forth the relative rights of
such holders, as the same may be further amended from time to time in accordance
with the terms thereof.
"A/B Mortgage Loan": Any Mortgage Loan serviced under this Agreement that
is divided into a senior mortgage note and a subordinated mortgage note, which
senior mortgage note is included in the Trust.
"ABS Issuing Entity": Each trust or entity that has issued asset-backed
securities that directly or indirectly evidence interests in or are secured by a
pledge of one or more mortgage
loans serviced hereunder (regardless of whether such mortgage loan constitutes a
"Mortgage Loan" under the other provisions of this Agreement), it being
understood that the HQ12 Trust constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": The Primary Servicing Fee and the Excess
Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and annual
financial statements and rent rolls collected with respect to the Mortgaged
Properties securing the Mortgage Loans and A/B Mortgage Loans, to be made
available, within 30 days following receipt thereof by the Primary Servicer, to
the Master Servicer (and, with respect to an A/B Mortgage Loan, the holder of
the B Note, if required by the applicable A/B Intercreditor Agreement), the
Operating Adviser, and, to any of the following Persons upon written
notification from Master Servicer of a request for such information and the
identity and address of the requesting Person requesting: the Rating Agencies,
the Special Servicer, or the Trustee.
"Applicable Depositor": The Depositor or the depositor with respect to an
ABS Issuing Entity other than the HQ12 Trust.
"B Note": With respect to any A/B Mortgage Loan, the related subordinated
Mortgage Note not included in the Trust, which is subordinated in right of
payment to the related A Note to the extent set forth in the related A/B
Intercreditor Agreement. There are no B Notes relating to this Agreement.
"Category 1 Consent Aspect": A condition, term or provision of a Category
1 Request that requires, or specifies a standard of, consent, or approval of the
applicable mortgagee under the Loan Documents, but shall explicitly exclude any
such conditions, terms or provisions enumerated in (a) an escrow or reserve
agreement for disbursements made from an escrow or reserve account or an
extension of time to complete repairs, replacements or improvements in
accordance with the terms and conditions set forth in Exhibit B-2(c); (b) an
assignment and assumption request covered under Section A.1.(c)(ii) of Exhibit
B-2(c) of this Agreement; (c) an additional lien, monetary encumbrance or
mezzanine financing request covered under Section A.1.(c)(iii) of Exhibit B-2(c)
of this Agreement; or (d) a defeasance request covered under Section A.1.(c)(i)
of Exhibit B-2(c) of this Agreement.
"Category 1 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Category 2 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Category 3 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"CMSA Comparative Financial Status Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit W.
-2-
"CMSA Delinquent Loan Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Financial File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit W.
"CMSA Historical Liquidation Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Historical Loan Modification Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Investor Reporting Package": The Commercial Mortgage Securities
Association Investor Reporting Package, certain forms of which are attached to
the Pooling and Servicing Agreement as Exhibits W and X and elements of which
shall be produced as provided in Section 2.1(c) and the Task Description.
"CMSA Loan Level Reserve/LOC Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Periodic Update File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit X.
"CMSA Loan Setup File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit X.
"CMSA Property File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit W.
"CMSA Quarterly Financial File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is substantially similar to the
form attached to the Pooling and Servicing Agreement as Exhibit W.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W the
contents of which are set forth in Section 8.11(h) of the Pooling and Servicing
Agreement.
-3-
"Day One Report": With respect to each Mortgage Loan and A/B Mortgage
Loan, a statement in the form of Exhibit B-1(f) setting forth the scheduled
payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan or A/B Mortgage Loan and on account of what type of payment such
amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan, a
Category 2 Request shall, for purposes of this Agreement, be deemed to be a
Category 1 Request and shall be processed, as such, by the Primary Servicer.
"Distribution Date": With respect to the HQ12 Trust, as defined in the
Pooling and Servicing Agreement. With respect to any other ABS Issuing Entity
(as the context requires), the monthly date on which distributions are made on
the related certificates under the related pooling and servicing agreement.
"Escrow Status Report": A brief statement to be delivered to the Persons
designated in Section 5.1(g) of the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the holder of the B Note, if required by the
applicable A/B Intercreditor Agreement, within twenty (20) days following the
first anniversary of the Closing Date, for each of the Mortgage Loans included
on Schedule VII of the Pooling and Servicing Agreement (and related B Notes),
about the status of the work or project based upon the most recent information
provided by the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each Mortgage Loan,
the portion of the related Excess Servicing Fee Rate applicable to such month
(determined in the same manner as the applicable Mortgage Rate determined for
such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance
of such Mortgage Loan immediately before the Due Date occurring in such month,
but prorated for the number of days during the calendar month for such Mortgage
Loan for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect to
each Mortgage Loan.
"Lease": A lease, proposed lease, or amendment, modification, restatement,
extension or termination of a lease, in each case of space and any other
ancillary and associated rights in a building or on the real estate constituting
all or a portion of a Mortgaged Property.
"Loan Documents": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents contained
in the Mortgage File for the Mortgage Loans and any A/B Mortgage Loans.
"Materiality Determination": With respect to a Category 1 Request, the
determination by Primary Servicer, exercised in good faith using the "Servicing
Standard" set forth in the Pooling and Servicing Agreement, whether a Category 1
Consent Aspect is material and should
-4-
be referred to the Special Servicer for consent in accordance with this
Agreement and the Pooling and Servicing Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all amendments
and modifications thereof, identified on the schedule attached to this Agreement
as Schedule I, as amended from time to time, and conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.1 or Section 2.3
of the Pooling and Servicing Agreement, and Mortgage Loan shall also include any
Defeasance Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Servicing Officer pursuant to this Agreement.
"Operating Statement Analysis": A report which is one element of the
MBA/CMSA Methodology for Analyzing and Reporting Property Income Statements,
which is part of the CMSA Investor Reporting Package and the form of which is
attached to the Pooling and Servicing Agreement as Exhibit W.
"Payment and Collection Description": The description of the obligations
of the Primary Servicer with respect to collection and remittance of payments on
the Mortgage Loans and the A/B Mortgage Loans, as more particularly described in
Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be submitted by
Primary Servicer to the Master Servicer with respect to reporting about
collection and remittance of payments, delinquencies, status of real estate
taxes, status of insurance and status of UCC financing statements for the
Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of the B
Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"POA Notice": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not become
Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on which a
Servicing Transfer Event has occurred, which obligations are more particularly
described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the
-5-
income and earnings on which shall inure entirely to the benefit of Primary
Servicer. The Primary Servicer Collection Account shall be established in the
name of "Xxxxx Fargo Bank, National Association, as Primary Servicer for
_______________________________________, as Master Servicer for LaSalle Bank
National Association, as Trustee and Custodian for the Holders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ12."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As defined in
Section 5.3(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.3(a) hereof.
"Primary Servicer Form 8-K Information Report": As defined in Section
5.13(c)(i) hereof.
"Primary Servicer Form 10-D Information Report": As defined in Section
5.13(c)(ii) hereof.
"Primary Servicer Form 10-K Information Report": As defined in Section
5.13(c)(iii) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and A/B Mortgage Loans and
(b) all other servicing documents and records in possession of Primary Servicer
that relate to or are used for the servicing of the Mortgage Loans and A/B
Mortgage Loans and that are not required to be part of the applicable Mortgage
File.
"Primary Servicing Fee": For each calendar month, as to each Mortgage Loan
and each B Note, the portion of the Primary Servicing Fee Rate applicable to
such month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan (or the Principal Balance in the case of
each B Note) immediately before the Due Date occurring in such month, but
prorated for the number of days during the calendar month for such Mortgage Loan
for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with respect to
each Mortgage Loan.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and A/B Mortgage Loans whose name and specimen signature
appear on a list of servicing officers or employees furnished to the Master
Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2 hereof.
-6-
"Property Inspection Description": The description of the obligations of
the Primary Servicer with respect to inspection of the Mortgaged Properties for
each of the Mortgage Loans and the A/B Mortgage Loans as more particularly
described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.12 hereof.
"Regulations": The rules, regulations and policy statements of the SEC as
in effect from time to time.
"Requirements List": As defined in the Post Closing Matters Description in
Exhibit B-2.
"SEC": The Securities and Exchange Commission.
"Services": Those activities to be provided by the Primary Servicer for
the Servicing of the Mortgage Loans and the A/B Mortgage Loans pursuant to the
provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan and any A/B Mortgage Loan,
the right and obligation of the Primary Servicer to administer such Mortgage
Loan and any A/B Mortgage Loan in accordance with the provisions hereof.
"Servicing Documents": The Master Servicer Servicing Documents and Primary
Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, the Primary
Servicer shall service and administer the Mortgage Loans and the A/B Mortgage
Loans that it is obligated to service and administer pursuant to this Agreement
on behalf of the Master Servicer and in the best interests of and for the
benefit of the Certificateholders and, with respect to each B Note, the
holder(s) of each such B Note (as determined by the Primary Servicer in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and A/B Mortgage
Loans and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in its
general mortgage servicing and REO property management activities on behalf of
third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and A/B Mortgage Loans;
and without regard to: (I) any other relationship that the Primary Servicer, or
any Affiliate thereof, may have with the related Mortgagor; (II) the ownership
of any Certificate or B Note by the Primary Servicer, or any Affiliate thereof;
(III) the Master Servicer's obligation to make Advances; and (IV) the right of
the Primary Servicer (or any Affiliate thereof) to receive reimbursement of
costs, or the sufficiency of any compensation payable to it, hereunder or with
respect to any particular transaction; provided, however, that in no event shall
the foregoing standards be less than the applicable provisions of the Servicing
Standard set forth in the Pooling
-7-
and Servicing Agreement and with respect to an A/B Mortgage Loan, the servicing
standards set forth in the related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or proposed
to cover more than the greater of either (a) 20,000 net rentable square feet or
(b) twenty percent (20%) of the net rentable square footage of the Mortgaged
Property.
"Significant Obligor": A "significant obligor" within the meaning of Item
1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement with
respect to a Lease on a form customarily used by Primary Servicer with respect
to Mortgaged Properties of similar type and consistent with the Servicing
Standard.
"Special Servicer": LNR Partners, Inc. or any successor thereto as special
servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Master Servicer
upon the termination of the Primary Servicer resulting from any Primary Servicer
Default, if any, who shall thereafter perform the Services with respect to the
Mortgage Loans and the A/B Mortgage Loans; provided, that the Master Servicer
shall perform all Services with respect to the Mortgage Loans and the A/B
Mortgage Loans until such Person, if any, is selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans and the
A/B Mortgage Loans as set forth in Exhibit B-4 attached to this Agreement.
"HQ12 Trust": The trust established under the Pooling and Servicing
Agreement.
"Trustee": LaSalle Bank National Association or any successor thereto as
trustee under the Pooling and Servicing Agreement
-8-
PRIMARY SERVICING
Primary Servicing From the Closing Date until the Primary Servicing
Termination Date, Master Servicer hereby authorizes and directs Primary Servicer
to service each Mortgage Loan and each A/B Mortgage Loan as primary servicer on
behalf of and at the direction of the Master Servicer as provided in this
Agreement. The Services shall consist of the following:
Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements under the Task Description, the Post
Closing Matters Description, the Payment and Collection Description and
the Payment and Mortgage Loan Status Reports, in each case in accordance
with the terms of this Agreement and, with respect to each B Note, the
terms of the related A/B Intercreditor Agreement, and in a manner not
inconsistent with the Pooling and Servicing Agreement. Primary Servicer
shall also perform the obligations to which it has expressly agreed under
the Pooling and Servicing Agreement and the Master Servicer's obligations
set forth in Sections 2.1(c), 2.1(d), that portion of 5.1(g) relating to
the Escrow Status Report, 8.11(i), if applicable, and 8.14 of the Pooling
and Servicing Agreement relating to Annual Statement and Rent Roll
Reporting with respect to the Mortgage Loans and the A/B Mortgage Loans.
Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and
the general allocation of responsibility of servicing obligations between
the Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description.
Without limiting the foregoing, Primary Servicer shall collect
and remit payments on the Mortgage Loans and the A/B Mortgage Loans in
accordance with the Payment and Collection Description. For the purposes
of this Agreement, the "Payment and Collection Description" shall
encompass all of the following responsibilities and obligations set forth
in the following subsections (i) through (viii) and subsection (xii):
On or prior to the Closing Date, the Primary Servicer shall
establish a Primary Servicer Collection Account, and give the Master
Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained and the account number of the Primary Servicer
Collection Account. Primary Servicer may direct the investment of
funds on deposit in the Primary Servicer Collection Account subject
to and in accordance with the criteria and requirements set forth in
the applicable A/B Intercreditor Agreement, as they relate to a
particular B Note and those set forth in the Pooling and Servicing
Agreement relating to the Collection Account
-9-
established thereunder (construed as if the Primary Servicer
Collection Account were such Collection Account), including without
limitation the obligation, if any, to deposit into such account the
amount of any investment losses to the extent required in the
Pooling and Servicing Agreement and, with respect to each B Note,
the terms of the related A/B Intercreditor Agreement.
The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans and the A/B Mortgage Loans (except for
payments due on or prior to the Cut-Off Date), as well as any
required Principal Prepayments, Prepayment Premiums, late charges,
Insurance Proceeds, Condemnation Proceeds and any and all other
amounts due from the Mortgagor or a third party with respect to the
Mortgage Loans pursuant to the Loan Documents; provided, however,
that with respect to any payments that are required under the terms
of the applicable loan documents to be made directly to a Person
other than the holder of the related Mortgage Loan, the Primary
Servicer shall use efforts consistent with the Servicing Standard to
cause such payments to be made.
The Primary Servicer shall deposit all such payments received
with respect to each A/B Mortgage Loan and each Mortgage Loan (less
any related Aggregate Servicing Fee and any other payments due to
Primary Servicer under this Agreement with respect to such Mortgage
Loan) into the Primary Servicer Collection Account on or before the
next Business Day after receiving each such payment. With respect to
funds deposited into the Primary Servicer Collection Account for
each A/B Mortgage Loan, on or before the end of the third Business
Day after the Primary Servicer receives such funds the Primary
Servicer shall determine, in accordance with the provisions of the
applicable A/B Intercreditor Agreement, the amount (if any) of such
funds required to be paid to the holder of the related B Note (less
any primary servicing fee or other fee, if any, agreed to be paid by
the holder of such B Note to the Primary Servicer pursuant to the
applicable A/B Intercreditor Agreement or other agreement between
the Primary Servicer and such B Note holder, together with any other
payments related to such B Note, which are payable to the Primary
Servicer). Such amounts shall be paid to each holder of a B Note, at
the times and in the manner required pursuant to the provisions of
the applicable A/B Intercreditor Agreement.
Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the
B Note, the Primary Servicer shall remit to the Master Servicer from
the Primary Servicer Collection Account, by wire transfer of
immediately available funds, all funds in such account (other than
income and earnings on such account), and shall not withdraw funds
therefrom for any other purpose, except to withdraw amounts required
to be paid to the holder of the B Note and any other amounts
deposited therein by error, as follows: (1) in the case of any
payments received and collected during a Collection Period on or
before the Determination Date for such Collection Period, Primary
Servicer shall remit such payments on such Determination Date; and
(2)
-10-
in the case of any payments received and collected by Primary
Servicer after the Determination Date for such Collection Period,
Primary Servicer shall remit all such payments on the first Business
Day following receipt of the amount of any such payments; provided,
however, that notwithstanding any contrary provision of clause (1)
or clause (2) all of the following provisions shall apply:
in the case of any payment received on a Determination
Date for a Collection Period, Primary Servicer shall (i)
provide Master Servicer with immediate notice of Primary
Servicer's receipt of such payment and (ii) shall use its
reasonable best efforts to remit such payment to Master
Servicer on the date of receipt and in any event shall remit
such payment to Master Servicer within one Business Day
following receipt (and Primary Servicer shall in any event
provide Master Servicer with immediate notice of Primary
Servicer becoming aware that any Principal Prepayment is to be
made on a Determination Date);
any Scheduled Payment due during a Collection Period but
received after the end of such Collection Period shall be
remitted by Primary Servicer within one Business Day following
Primary Servicer's receipt of such Scheduled Payment;
Primary Servicer shall use its reasonable best efforts
to remit to Master Servicer on the date of receipt of, and in
any event shall remit to Master Servicer within one Business
Day following receipt of, any unscheduled payments or Balloon
Payments that would result in a Prepayment Interest Shortfall;
and
any Scheduled Payment received and collected during a
Collection Period, but due on a Due Date occurring after the
end of such Collection Period, shall be remitted on the
Determination Date for the Collection Period in which such Due
Date occurs.
In the event any payments received by Primary Servicer becomes
NSF after the monies associated with that payment have been remitted
to the Master Servicer, the Master Servicer will return such moneys
to Primary Servicer by wire transfer in immediately available funds
within one Business Day of notice from the Primary Servicer. If the
Primary Servicer fails to remit to the Master Servicer when due the
total pool remittance required to be remitted under this Agreement
(whether or not such failure constitutes a Primary Servicer
Default), then interest shall accrue on the amount of the total pool
remittance and the Primary Servicer shall promptly pay such interest
to the Master Servicer, at a per annum rate equal to the Advance
Rate from and including the date when such remittance was required
to be made to but excluding the day when such remittance is actually
made. If the Primary Servicer fails to remit a single loan
remittance more than five (5) days after the single loan remittance
was received by the Primary Servicer, then interest shall accrue on
the amount of such single loan remittance and the Primary Servicer
shall promptly pay such interest to the Master Servicer,
-11-
at a per annum rate equal to the Advance Rate from and including the
date when such remittance was required to be made to but excluding
the date when such remittance is actually made.
With respect to escrow or reserve payments as listed on the
Task Description, the Primary Servicer shall collect escrow or
reserve amounts with respect to the Mortgage Loans and A/B Mortgage
Loans, and shall deposit such funds in an escrow account, which
shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real
estate taxes, insurance and reserves, and escrows for repairs,
replacements, principal and interest payments and lease payments and
any other matters specified in any agreement in which funds are held
at the time, and in the manner and for the purposes as otherwise
required or delineated in the Loan Documents and with respect to the
Master Servicer under the Pooling and Servicing Agreement. The
Primary Servicer may direct the investment of such funds subject to
and in accordance with the criteria and requirements set forth in
the Pooling and Servicing Agreement relating to Escrow Accounts,
including without limitation the obligation to deposit into the
Escrow Account the amount of any investment losses to the extent
required in the Pooling and Servicing Agreement. Primary Servicer
shall have the benefit and shall retain all interest and income
earned on the Escrow Accounts for the Mortgage Loans and A/B
Mortgage Loans that is not paid to Mortgagors.
Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments
received on Mortgage Loans and A/B Mortgage Loans; (2) a delinquency
report; (3) a real estate tax delinquency report which may be based
upon information provided by Primary Servicer's real estate tax
service (if any) if engaged in accordance with Article VII of this
Agreement; (4) an insurance monitoring report; (5) a UCC form
monitoring report; and (6) the Day One Report. Primary Servicer
shall submit the Payment and Mortgage Loan Status Report described
by clause (1) above by electronic mail on each day that payments or
funds are remitted to the Master Servicer pursuant to Section 2.1(c)
of this Agreement. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report described by clause (2) above by
electronic mail, monthly no later than the tenth (10th) day of each
month for the previous month. Primary Servicer shall submit the
Payment and Mortgage Loan Status Reports described by clauses (3),
(4) and (5) above by electronic mail, quarterly no later than
January 15, April 15, July 15 and October 15 for the previous above
quarter. Primary Servicer shall submit the Payment and Mortgage Loan
Status Report described by clause (6) above by electronic mail,
monthly no later than the first (1st) day of each month in which the
applicable Distribution Date occurs for the then current Collection
Period. If the day on which any Payment and Mortgage Loan Status
Report is otherwise due as described above does not constitute a
Business Day, then such report shall be due on the immediately
succeeding Business Day.
-12-
Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package
for the Mortgage Loans and the A/B Mortgage Loans as follows:
Master Servicer shall complete all fields and aspects of
the CMSA Loan Setup File that are available from the Final
Prospectus Supplement. Upon completing all of such fields,
Master Servicer shall forward the CMSA Loan Setup File for the
Mortgage Loans and the A/B Mortgage Loans to Primary Servicer
who shall complete the fields and aspects of the CMSA Loan
Setup File for the Mortgage Loans and the A/B Mortgage Loans
that are not available from the Final Prospectus Supplement
and return to Master Servicer the completed CMSA Loan Setup
File for the Mortgage Loans and the A/B Mortgage Loans within
five (5) Business Days of receiving such file from Master
Servicer. Master Servicer shall deliver a CMSA Loan Setup File
to Primary Servicer (a) for the Mortgage Loans and the A/B
Mortgage Loans only; (b) in electronic form; (c) using an
Excel file; and (d) with all fields in the same order as the
CMSA Loan Setup File. Primary Servicer and Master Servicer
acknowledge that delivery of the CMSA Loan Setup File is to
commence with the Report Date in August 2007.
Commencing in the applicable "Month of Initial Report"
set forth opposite each report described below, the Primary
Servicer shall complete such report at the frequency set forth
opposite such report below and deliver such report to the
Master Servicer at or before the time described opposite such
report below (and with respect to an A/B Mortgage Loan,
deliver any additional reports to the holder of the related B
Note which may be required to be delivered to the holder of
such B Note, at such times as may be required pursuant to the
applicable A/B Intercreditor Agreement):
-13-
---------------------------------------------------------------------------------------------------------------------
Description of Month of Frequency Time of Required
Report Initial of Delivery to the
Report Report Master Servicer
---------------------------------------------------------------------------------------------------------------------
CMSA Property File September 2007 Monthly 10th Business Day for prior month but in no event
later than the Business Day prior to the Report
Date in such month.
---------------------------------------------------------------------------------------------------------------------
Operating Statement October 2007 for Annually With respect to each calendar year, beginning in
Analysis Report, CMSA year-end 2006 2007 for year-end 2006, the earlier of (i) 30 days
Financial File and NOI after receipt of the underlying operating
Adjustment Worksheet statements from the borrower or (ii) June 1.
---------------------------------------------------------------------------------------------------------------------
CMSA Loan Level September 2007 Monthly 10th Business Day for prior month but in no event
Reserve/LOC Report later than the Business Day prior to the Report
Date in such month.
---------------------------------------------------------------------------------------------------------------------
CMSA Servicer Watch September 2007 Monthly 10th Business Day for prior month but in no event
List later than the Business Day prior to the Report
Date in such month.
---------------------------------------------------------------------------------------------------------------------
CMSA Comparative September 2007 Monthly 10th Business Day for prior month but in no event
Financial Status Report later than the Business Day prior to the Report
Date in such month
---------------------------------------------------------------------------------------------------------------------
Quarterly Operating January 2008 Quarterly, With respect to a calendar quarter, within 95 days
Statement Analysis but with following the end of such calendar quarter
Report and CMSA respect to (commencing with the quarter ending on September
Quarterly Financial only the 30, 2007).
File first three
calendar
quarters in
each year
---------------------------------------------------------------------------------------------------------------------
The Master Servicer shall have the responsibility to
complete and deliver the following reports in accordance with
the Pooling and Servicing Agreement: CMSA Loan Setup File,
CMSA Loan Periodic Update File; CMSA Delinquent Loan Status
Report; CMSA REO Status Report; CMSA Historical Loan
Modification Report and CMSA Historical Liquidation Report.
Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Master Servicer
specific information or data in Primary Servicer's possession
and necessary to complete a report for which Master Servicer
is responsible, upon the written request of
-14-
Master Servicer; and (b) the Master Servicer shall reasonably
cooperate to provide to the Primary Servicer specific
information or data in the Master Servicer's possession, as
may be requested in writing by the Primary Servicer, to enable
the Primary Servicer to prepare and deliver to each holder of
a B Note any reports or notices required to be delivered to
each such holder of a B Note, pursuant to the provisions of
the applicable A/B Intercreditor Agreement.
Notwithstanding the definitions of various CMSA reports
in this Agreement that directly link such reports to a form
attached as part of Exhibit W and Exhibit X to the Pooling and
Servicing Agreement, Master Servicer shall be entitled to
amend the forms of such reports that Primary Servicer must
deliver under this Agreement, provided that (a) the Commercial
Mortgage Securities Association has amended the applicable
reports and published such amendments as its revised form on
its website; (b) Master Servicer gives Primary Servicer no
less than one hundred twenty (120) days notice of any required
amendments or revisions to a report prior to their becoming
effective as the form of report to deliver under this
Agreement; and (c) any such amendments or revisions (either
singly or in the aggregate) shall not impose undue additional
burden or costs upon Primary Servicer to collect, format,
calculate or report information to Master Servicer.
All Operating Statement Analysis Reports, NOI Adjustment
Worksheets, financial statements, rent rolls, and budgets
delivered by the Primary Servicer to the Master Servicer
pursuant hereto shall be labeled according to the
______________________ for Electronic File Delivery.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection
Description and Payment and Mortgage Loan Status Reports. In the
event of any conflict between (1) the Task Description and (2) the
Payment and Collection Description and Payment and Mortgage Loan
Status Reports, then the Payment and Collection Description and
Payment and Mortgage Loan Status Reports shall govern.
The Primary Servicer shall be responsible for the calculation
of any and all Prepayment Premiums payable under each Mortgage Loan
and each A/B Mortgage Loan.
Within thirty (30) days following the Closing Date, Primary
Servicer shall deliver to Master Servicer a report listing the tax
parcels coinciding with the Mortgaged Properties.
All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan, which are
payable to the holder of the applicable B Note pursuant to the
provisions of the applicable Intercreditor Agreement, shall be paid
by the Primary Servicer to such B Note holder no later
-15-
than three Business Days after collection of such funds. In the
event that the Primary Servicer determines (in its sole discretion)
that in order to confirm the amount to be disbursed to a B Note
holder pursuant to the provisions of the A/B Intercreditor
Agreement, the Primary Servicer requires information from the Master
Servicer, the Primary Servicer shall have the right, within three
Business Days after collection of the funds at issue, to deliver to
the Master Servicer a written request for such information. The
Master Servicer shall provide the information requested, to the
extent that such information is in the possession of the Master
Servicer or involves a calculation to be made by the Master Servicer
on the basis of information in the possession of the Master
Servicer, no later than three Business Days after the Master
Servicer receives the Primary Servicer's written request, and the
Primary Servicer shall make the disbursement at issue to the B Note
holder no later than three Business Days after it receives the
information from the Master Servicer needed to confirm the
disbursement at issue. In the event that the Master Servicer
determines (in its sole discretion) that it is necessary or
desirable to direct the Primary Servicer as to how to allocate
amounts collected for an A/B Mortgage Loan between the holders of
the related Mortgage Loan and its related B Note, the Master
Servicer shall have the right, no later than the end of the second
Business Day after each of the A/B Mortgage Loan's scheduled monthly
payment dates, to deliver a written direction notice to the Primary
Servicer. The Primary Servicer shall comply with the Master
Servicer's directions, absent a disagreement (which shall be
promptly communicated in writing to the Master Servicer) and
addressed by the Master Servicer and the Primary Servicer within the
time frames set forth in this Section 2.1(c)(xii). If there is any
disagreement between the Master Servicer and the Primary Servicer
with respect to the allocation of funds on the A/B Mortgage Loan,
then the Master Servicer and the Primary Servicer shall consult with
each other in good faith but the determination of the Master
Servicer shall control and no consultation shall extend in duration
beyond the date reasonably necessary for allocations, remittances
and reporting to be timely made to the holders of the A Note and B
Note. In the event that collection responsibilities for an A/B
Mortgage Loan are transferred from the Primary Servicer to the
Master Servicer or Special Servicer pursuant to the applicable
provisions of this Agreement or the Pooling and Servicing Agreement,
all amounts that are collected by the Master Servicer or the Special
Servicer, as applicable, during a Collection Period with respect to
such A/B Mortgage Loan and are payable to the holder of the
applicable B Note pursuant to the provisions of the related A/B
Intercreditor Agreement shall be remitted by the Master Servicer to
such B Note holder no later than three Business Days after the
collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B
Note holder (except that if the related Mortgaged Property has
become an REO Property, then the funds on deposit in the related REO
Account related to such REO Property shall be remitted to the Master
Servicer by the Special Servicer as and to the extent otherwise
provided in Section 9.14(b) of the Pooling and Servicing Agreement
and then, to the extent remittable to the holder of the
-16-
applicable B Note, shall be so remitted on the next succeeding
Master Servicer Remittance Date).
Commencing in the year 2008, Primary Servicer shall inspect,
or cause to be inspected, each of the Mortgaged Properties for the
Mortgage Loans and the A/B Mortgage Loans in accordance with Section 8.17
of the Pooling and Servicing Agreement and, promptly upon completion of
such inspection, shall deliver to Master Servicer and with respect to an
A/B Mortgage Loan, to the holder of the related B Note, if required by the
applicable A/B Intercreditor Agreement, a property inspection report in
the form attached as Exhibit B-3 ("Property Inspection Description"). Each
property inspection report delivered by the Primary Servicer shall be
imaged with the _________________________ for Electronic File Delivery.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In
the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
Primary Servicer shall promptly notify the Master Servicer of
any significant events affecting any one or more of the Mortgage Loans and
A/B Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties which become known to Primary Servicer or of which the Primary
Servicer receives notice, such as a payment default, a bankruptcy, a
judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Master Servicer of all material collection
and customer service issues and, promptly following any request therefor
by the Master Servicer, shall furnish to the Master Servicer with copies
of any correspondence or other documents in the possession of the Primary
Servicer related to any such matter. The Primary Servicer shall use
reasonable efforts to promptly notify the Master Servicer as soon as the
Primary Servicer (exercising good faith and reasonable judgment in
accordance with the Servicing Standard) becomes aware that any Servicing
Advance will be required (or may reasonably be expected to be required) to
be made with respect to any Mortgage Loan or any A/B Mortgage Loan under
the standards imposed on the Master Servicer by the Pooling and Servicing
Agreement.
Within 30 days following the Closing Date, Primary Servicer
shall deliver to Master Servicer for each of its Mortgage Loans and A/B
Mortgage Loans to be included in the Escrow Status Report, the deadline or
expiration date contained in the applicable escrow or reserve agreement
for completing the specific immediate engineering work, completion of
additional construction, environmental remediation or similar one-time
projects for which such Mortgage Loan or A/B Mortgage Loan is to appear in
the Escrow Status Report.
In addition, the Primary Servicer shall deliver or cause to be
delivered to Master Servicer any and all information as may reasonably be
necessary for the Master Servicer to perform its obligations under Section
8.3(i) of the Pooling and Servicing Agreement (to the extent related to
the Mortgage Loans and/or A/B Mortgage Loans); provided, however, that in
the event that the Primary Servicer has sent a notice to a
-17-
ground lessor as contemplated by such Section 8.3(i) of the Pooling and
Servicing Agreement, the delivery to the Master Servicer of a copy of such
notice shall satisfy the Primary Servicer's obligation under this section
with respect to such ground lease.
Primary Servicer shall perform all other obligations of the
Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection with
the performance of its obligations hereunder, the Primary Servicer shall be
entitled to request from the Master Servicer, and the Master Servicer agrees
that it shall provide, express instructions for the completion of any of the
Services to be performed or completed by the Primary Servicer, to the extent
necessary to clarify any ambiguities in the terms of this Agreement. The Master
Servicer further agrees that the Primary Servicer shall be entitled to rely upon
any such written instructions. The Primary Servicer and the Master Servicer,
respectively, shall perform all of their respective obligations as allocated and
set forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary servicing of the Mortgage
Loans and the A/B Mortgage Loans, except as specifically set forth in this
Agreement.
Standard of Care The Primary Servicer shall perform all Services on
behalf of the Master Servicer in accordance with the terms of this Agreement and
the Servicing Standard and in a manner consistent with the applicable provisions
of the Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan,
the applicable provisions of the related A/B Intercreditor Agreement.
Compensation and Other Payments to the Primary Servicer As
consideration for the Primary Servicer's performance of the Services hereunder:
(a), the Primary Servicer shall be entitled to deduct the Aggregate Servicing
Fee in accordance with Section 2.1(c)(iii) of this Agreement, with respect to
the related Collection Period for each Mortgage Loan for which a payment was
received by the Master Servicer or forwarded to the Master Servicer by the
Primary Servicer; and (b) with respect to each A/B Mortgage Loan, the Primary
Servicer shall be entitled to deduct any Primary Servicing Fee or other fee
payable to the Primary Servicer as may be agreed to by the holder of the related
B Note, from each payment received by the Primary Servicer and which is
allocable to such holder of the related B Note, all in accordance with the
provisions of Section 2.1 of this Agreement. Notwithstanding the foregoing,
Primary Servicer shall not be entitled to a Primary Servicing Fee with respect
to any Mortgage Loan (other than an A/B Mortgage Loan) for which a Servicing
Transfer Event has occurred (unless such Mortgage Loan becomes a Rehabilitated
Mortgage Loan) or with respect to which the Primary Servicer has been terminated
as Primary Servicer under this Agreement and the Pooling and Servicing
Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing Fee
for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans become
Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Master Servicer (and
-18-
any successor) shall cause the Excess Servicing Fee to be paid on the Mortgage
Loans to Primary Servicer monthly in accordance with the terms of the Pooling
and Servicing Agreement.
The Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans and the A/B Mortgage Loans. If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If a Mortgage Loan or an A/B Mortgage
Loan becomes a Specially Serviced Mortgage Loan, Primary Servicer shall be
entitled to collect all such interest and income that accrues through the date
of the applicable Servicing Transfer Event. The right to retain such interest
and income shall resume if such Mortgage Loan or an A/B Mortgage Loan becomes a
Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or portions
of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents and the Mortgagor makes such reimbursement.
Primary Servicer Representations and Warranties (a) The Primary
Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (i)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer and (ii) in lieu of the representation described in the first
clause of Section 8.20(a)(i) of the Pooling and Servicing Agreement, the Primary
Servicer represents that the Primary Servicer is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
-19-
(b) The Primary Servicer hereby makes for the benefit of the Master
Servicer the same representations and warranties as are made by the Primary
Servicer to the Depositor under Section 13.2(a) of the Pooling and Servicing
Agreement.
DOCUMENTS AND OTHER MATTERS
Segregation of Mortgage Loan Documents The Primary Servicer shall
segregate the Primary Servicer Servicing Documents related to the Mortgage Loans
and the A/B Mortgage Loans from all other assets of the Primary Servicer and,
upon request, forward to the Master Servicer copies of such documents or
originals of such documents if in the possession of Primary Servicer and not
part of the Mortgage File forwarded to the Trustee. The Primary Servicer
acknowledges that any letter of credit held by it shall be held in its capacity
as agent of the Trust, and if the Primary Servicer sells its rights to service
the applicable Mortgage Loan or A/B Mortgage Loan, the Primary Servicer shall
assign the applicable letter of credit to the Trust or at the direction of the
Special Servicer to such party as the Special Servicer may instruct, and the
Primary Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment.
Access to Documents; Provision of Certain Information The Primary
Servicer shall make available to the Master Servicer or any Successor Primary
Servicer, at a reasonable time, such information as the Master Servicer or such
Successor Primary Servicer shall reasonably request in writing and shall make
available to the Master Servicer or any Successor Primary Servicer or Persons
designated by the Master Servicer or such Successor Primary Servicer such
documents as the Master Servicer shall reasonably request in writing. The Master
Servicer shall make available to the Primary Servicer, at a reasonable time,
such information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15 of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loan and the A/B Mortgage Loans and the
Servicing of the Mortgage Loans and the A/B Mortgage Loans as the Primary
Servicer shall reasonably request in writing.
MASTER SERVICER ASSISTANCE
Master Servicer Assistance
-20-
(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary and any other
notwithstanding provisions in this Agreement (including any contrary provision
of Exhibit B-2), the Primary Servicer shall do any and all things reasonably
requested by the Master Servicer to enable the Master Servicer to comply with
its obligations under the Pooling and Servicing Agreement. Before the Master
Servicer releases all or any portion of any Mortgage File or document contained
therein or acquired in respect thereof to the Primary Servicer, the Master
Servicer may require the Primary Servicer to execute a receipt therefor or, in
the event of a Mortgage Loan or an A/B Mortgage Loan that has been repaid in
full, a certificate with respect to the payment in full of the related Mortgage
Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services,
the Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans and
A/B Mortgage Loans and carry out its duties hereunder, in each case in
accordance with the Servicing Standard and the terms of this Agreement. The
Primary Servicer hereby agrees to indemnify the Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use of
any such power of attorney.
Specially Serviced Mortgage Loans The Primary Servicer shall
promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Mortgagor that are received by the Primary Servicer
and with respect to such Mortgage Loan or A/B Mortgage Loan such other matters
as would, consistent with the Servicing Standard, require notification to the
owner or the servicer of the Mortgage Loan or A/B Mortgage Loan. The Master
Servicer shall notify the Primary Servicer of any Specially Serviced Mortgage
Loan becoming a Rehabilitated Mortgage Loan promptly following the Master
Servicer's receipt of notice to such effect from the Special Servicer and shall
provide Primary Servicer with all relevant documents received during the time
that the relevant Mortgage Loan or A/B Mortgage Loan was a Specially Serviced
Mortgage Loan following the Master Servicer's receipt of such documents from the
Special Servicer. Upon the request of Primary Servicer, Master Servicer shall
request from the Special Servicer all such relevant documents with respect to a
Rehabilitated Mortgage Loan. Notwithstanding anything contained herein to the
contrary, the Primary Servicer shall not without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Primary Servicer's representative capacity, or (ii)
knowingly take any action that causes the Trustee to be registered to do
business in any state, provided, however, that the preceding clause (i) shall
not apply to the initiation of actions relating to a Mortgage Loan that the
Primary Servicer is servicing pursuant to its duties herein (in which case the
Primary Servicer shall give three (3) Business Days prior notice to the Trustee
of the initiation of such action).
-21-
ADDITIONAL PRIMARY SERVICER COVENANTS
Notice of Litigation With respect to any Mortgage Loan or A/B
Mortgage Loan as to which litigation is instituted, the Primary Servicer, if
aware of such litigation, shall notify the Master Servicer immediately as to the
status of the litigation related to such Mortgage Loan or A/B Mortgage Loan and
shall, when reasonably required or requested by the Master Servicer, provide to
the Master Servicer copies of all pertinent information in the Primary
Servicer's possession related to such litigation, including, without limitation,
copies of related Servicing Documents.
No Personal Solicitation The Primary Servicer hereby agrees that it
will not knowingly take any action or cause any action to be taken by any of its
agents or Affiliates, or independent contractors or working on its behalf, to
personally, by telephone or mail, solicit the prepayment of any Mortgage Loan or
A/B Mortgage Loan by any Mortgagor. Primary Servicer agrees not to forward to
any Mortgagor or other obligors under a Mortgage Loan or A/B Mortgage Loan, any
correspondence or documents between Master Servicer and Primary Servicer
regarding a Post Closing Request (except the Requirements List (as defined in
Exhibit B-2(c)) without the consent of the Master Servicer or Special Servicer
(acting in its sole discretion), unless required by law.
Fidelity Bond and Errors and Omissions Insurance Policy (a) The
Primary Servicer, at its own expense, shall maintain in effect a fidelity bond
(the "Primary Servicer Fidelity Bond") and an errors and omissions policy (the
"Primary Servicer Errors and Omissions Insurance Policy") with a Qualified
Insurer, naming the Master Servicer as loss payee, affording coverage for all
directors, officers and employees. The Primary Servicer Errors and Omissions
Insurance Policy and Primary Servicer Fidelity Bond shall be in such form and
amount that would satisfy the same requirements for such policies as the Master
Servicer must satisfy as set forth in Section 8.2 of the Pooling and Servicing
Agreement. Notwithstanding any other provisions of this Agreement, the Primary
Servicer shall be permitted to self-insure with respect to its obligations to
maintain the Primary Servicer Fidelity Bond and a Primary Servicer Errors and
Omissions Policy to the extent the Master Servicer is permitted under Section
8.2 of the Pooling and Servicing Agreement (construed as if the references
therein to the Master Servicer were instead references to the Primary Servicer).
The Primary Servicer shall furnish to the Master Servicer, not later than thirty
(30) days after the Closing Date, evidence of the Primary Servicer's compliance
with this Section 5.3(a).
The Primary Servicer shall promptly report in writing to the Master
Servicer any material adverse changes that may occur in the Primary Servicer
Fidelity Bond or the Primary Servicer Errors and Omissions Insurance Policy and
shall furnish to the Master Servicer upon written request copies of all binders
and policies or certificates evidencing that such bond and insurance policy are
in full force and effect. The Primary Servicer shall promptly report in writing
to the Master Servicer all cases of embezzlement or fraud or irregularities of
operation relating to the servicing of the Mortgage Loans and of the A/B
Mortgage Loan by the Primary Servicer and its employees, officers, directors,
agents and representatives if such events involve funds relating to the Mortgage
Loans and the A/B Mortgage Loan. The total of such losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
-22-
such reports together with the amount of such losses covered by insurance. If a
bond or insurance claim report is filed with any of the Primary Servicer's
bonding companies or insurers relating to the Mortgage Loans or the A/B Mortgage
Loans or the servicing thereof, a copy of such report (which report may omit any
references to individuals suspected of such embezzlement, fraud or
irregularities of operation) shall be promptly furnished to the Master Servicer.
Primary Servicer's Financial Statements and Related Information The
Primary Servicer shall deliver to the Master Servicer, within 120 days after the
end of its fiscal year, a copy of its annual financial statements, such
financial statements to be audited if then customarily audited, and with respect
to any unaudited financial statements provided by the Primary Servicer, which
financial statements shall be certified by the Primary Servicer's chief
financial officer to be true, correct and complete. The Primary Servicer shall
notify the Master Servicer, as of the Closing Date, of the Primary Servicer's
fiscal year and shall notify the Master Servicer promptly after any change
thereof.
No Advancing Under no circumstance shall the Primary Servicer make
or have an obligation to make any Advances.
REMIC Compliance The Primary Servicer shall comply with all of the
obligations otherwise imposed on the Master Servicer under Article XII of the
Pooling and Servicing Agreement insofar as such obligations relate to the
Mortgage Loans and/or the A/B Mortgage Loans.
Inspection Rights The Primary Servicer shall afford the Master
Servicer and the Trustee, upon reasonable notice and during normal business
hours, reasonable access to all records, information, books and documentation
regarding the applicable Mortgage Loans and the A/B Mortgage Loans, and all
accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Primary Servicing Officers of the Primary Servicer
responsible for its obligations hereunder. Without limiting the preceding
sentence, Master Servicer may visit the offices of Primary Servicer no more than
once annually for the purpose of reviewing Primary Servicer's compliance with
this Agreement upon reasonable notice and during normal business hours, and
Primary Servicer shall reasonably cooperate with Master Servicer to provide
Master Servicer with the information that Master Servicer reasonably requests to
permit such review. Primary Servicer shall reimburse Master Servicer for its
reasonable and actual travel expenses incurred in connection with such review in
an amount not to exceed $5,000 annually in total for this Agreement and all
similar commercial mortgage loan servicing agreements in place between Primary
Servicer and Master Servicer. Primary Servicer shall have no obligation to
provide access to non-public information not pertaining to the Mortgage Loans or
the A/B Mortgage Loans or to proprietary information relating to Primary
Servicer.
Authorized Officer Primary Servicer shall provide Master Servicer
promptly with a written list of authorized Servicing Officers of Primary
Servicer, which may be amended from time to time by written notice from Primary
Servicer to Master Servicer; provided, however, that such list shall denote one
principal Servicing Officer responsible for the Primary Servicer's obligations
under this Agreement.
-23-
Additional Reports Primary Servicer shall produce such additional
written reports with respect to the Mortgage Loans and the A/B Mortgage Loans as
the Master Servicer may from time to time reasonably request in accordance with
the Servicing Standard and shall reasonably cooperate with Master Servicer to
aid Master Servicer in its obligations to produce additional reports and respond
to inquiries under the Pooling and Servicing Agreement.
Prepayment Interest Shortfalls and Excesses (a) For any Mortgage
Loan, Primary Servicer shall require Principal Prepayments to be made so as not
to cause a Prepayment Interest Shortfall. If the Loan Documents of a related
Mortgage Loan do not allow Primary Servicer to require Principal Prepayments (or
condition acceptance of Principal Prepayments) on a date that will avoid a
Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date Mortgage Loan"),
then the Primary Servicer shall pay to Master Servicer on the date specified in
Section 2.1(c)(iv) of this Agreement, in addition to all other amounts due for
such Principal Prepayment, an amount payable by the Primary Servicer from its
own funds without reimbursement therefor equal to any Prepayment Interest
Shortfall that results from such Principal Prepayment (for the avoidance of
doubt, no such reimbursement shall be required with respect to any B Notes);
provided, however, that for all Principal Prepayments received during any
Collection Period with respect to Non-Mandatory Prepayment Date Mortgage Loans,
the Primary Servicer shall in no event be required to remit an amount greater
than the amount of the Primary Servicing Fees for such Collection Period, plus
any investment income earned on the amount prepaid prior to the related
Distribution Date.
[Reserved].
If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as required under Section 2.1 and Master
Servicer shall, on the Master Servicer Remittance Date immediately following the
remittance of the Principal Prepayment by the Primary Servicer to the Master
Servicer, remit to Primary Servicer a pro rata portion (based upon all
Prepayment Interest Excesses remitted to Master Servicer by all Primary
Servicers (as defined in the Pooling and Servicing Agreement) with respect to
such Collection Period) of the amount by which the amount of the Prepayment
Interest Excesses for such Collection Period exceed all Prepayment Interest
Shortfalls (excluding, with respect to all of the Primary Servicers, any
Prepayment Interest Shortfalls of the type described in clause (b) above) for
such Collection Period with respect to any of the mortgage loans (whether or not
the subject of this Agreement) that are serviced under the Pooling and Servicing
Agreement (except that if the aggregate pro rata portion owed to Primary
Servicer during any Collection Period as a result of such calculation exceeds
$20,000, Master Servicer shall remit to Primary Servicer such pro rata portion
no later than three (3) Business Days prior to the Distribution Date for the
applicable Collection Period).
Consents Primary Servicer shall (a) obtain the consent of the
Special Servicer with respect to assignments and assumptions of Mortgage Loans
or A/B Mortgage Loans in accordance and subject to the terms of Section
A.1(c)(ii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the Pooling
and Servicing Agreement; (b) obtain the consent of the Master Servicer with
respect to the defeasance of Mortgage Loans in accordance with and subject to
the terms of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain
the consent of the
-24-
Special Servicer with respect to additional liens, monetary encumbrances and
mezzanine financings in accordance with and subject to the terms of Section
A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the Pooling
and Servicing Agreement; (d) notify Master Servicer of any Materiality
Determination, which shall thereafter be handled in accordance with Sections
A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; and (e) with respect to
an A/B Mortgage Loan, if required by the related A/B Intercreditor Agreement,
obtain the consent of the holder of the related B Note for those actions which
require the consent of such B Note holder.
Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer shall execute and deliver to Master Servicer a
certification substantially in the form set forth in Exhibit D hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in April 2006 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
Exchange Act Reports; Annual Compliance Documents
(a) Regulation AB Compliance. The Primary Servicer shall comply
with the reporting and certification requirements required to be complied with
by a "Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant"
or an "Additional Servicer" under Article XIII of the Pooling and Servicing
Agreement (whether or not the Primary Servicer's activities satisfy the
percentage requirement set forth in the definition of "Servicing Function
Participant" under the Pooling and Servicing Agreement (or, implicitly, in the
definitions of "Reporting Servicer" or "Sub-Servicer" under the Pooling and
Servicing Agreement) or the definitional requirements of "Additional Servicer"
under the Pooling and Servicing Agreement).
(b) General Reporting Obligations. The Primary Servicer shall
comply from time to time with the reporting and certification requirements set
forth in Section 5.13(c) with respect to each ABS Issuing Entity. For such
purpose, Section 5.13(c) shall be construed separately in relation to each ABS
Issuing Entity. If any mortgage loan serviced hereunder is not initially held by
the HQ12 Trust, then any ABS Issuing Entity to which such mortgage loan may
subsequently be transferred shall be recognized as an ABS Issuing Entity for
purposes of this Section from and after the effective date set forth in a notice
of such transfer delivered to the Primary Servicer, which notice sets forth the
name of the ABS Issuing Entity, the name and address of the depositor for such
ABS Issuing Entity, the name and address of the trustee for such ABS Issuing
Entity, the name and address of any paying agent and/or certificate
administrator for such ABS Issuing Entity that is not the same person as the
trustee for such ABS Issuing Entity and the name and address of the applicable
master servicer for such ABS Issuing Entity. In no event shall such an effective
date occur earlier than the date that is five (5) Business Days following the
delivery of such notice.
For example and not as a limitation of the preceding paragraph, if a
hypothetical promissory note designated "Note A-1" and a hypothetical promissory
note designated "Note A-2" are secured by the same mortgaged property, such
"Note A-1" is held by the HQ12 Trust and such "Note A-2" is held by a different
commercial mortgage trust, then (i) one set of the reports required hereunder
must be prepared and delivered with respect to the trust that holds such "Note
-25-
A-1" and a second set of the reports required hereunder must be prepared and
delivered with respect to the trust that holds such "Note A-2", (ii) for
purposes of measuring percentages of pool assets, the first set of reports must
reflect (where applicable) a measurement of percentages of pool assets by
reference to the pool of assets held by the trust that holds such "Note A-1" and
the second set of reports must reflect (where applicable) a measurement of
percentages of pool assets by reference to the pool of assets held by the trust
that holds such "Note A-2" and (iii) references in the succeeding provisions of
this Section to the "ABS Issuing Entity" shall mean, for purposes of the first
set of reports, the trust that holds such "Note A-1" and, for purposes of the
second set of reports, the trust that holds such "Note A-2".
(c) Certain Reports, Certifications and Compliance Information.
The Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than the date set forth in Section 13.9 of the
Pooling and Servicing Agreement with respect to any event described below
of which the Primary Servicer becomes aware, the Primary Servicer shall
deliver to the Depositor or other Applicable Depositor (with a copy to the
Master Servicer) a report (a "Primary Servicer Form 8-K Information
Report") setting forth all of the information regarding such event that is
required to be included in a Current Report on Form 8-K ("Form 8-K") under
the Exchange Act, to the extent that such information relates (i) to the
Primary Servicer or (ii) to the mortgage loans serviced by (and a
servicing function of) the Primary Servicer hereunder. Such events shall
consist of:
(A) a termination or expiration of a material
subservicing agreement;
(B) any instances of a bankruptcy or insolvency
proceeding described in Item 1.03(a) or Item 1.03(b) of Form 8-K
involving the Primary Servicer or any Significant Obligor;
(C) the resignation, removal, replacement or
substitution of a sub-Primary Servicer that constitutes a servicer
described by Item 1108(a)(2) of Regulation AB, or the appointment of
a new such sub-Primary Servicer (in which case the report shall
state the date the event occurred and the circumstances surrounding
the change, provide the disclosure required by Item 1108(d) of
Regulation AB regarding the servicer change and, if a new such
sub-Primary Servicer that constitutes a servicer described in Item
1108(a)(3) of Regulation AB has been appointed, provide the
information required by Item 1108(b) through (d) of Regulation AB
regarding such sub-Primary Servicer, and, to the extent that any
information called for by this clause regarding such sub-Primary
Servicer is not determined or is unavailable at the time of the
required filing, the Primary Servicer shall include a statement to
this effect in the report and then must deliver an amendment to the
report containing such information within one Business Day
-26-
after the information is determined or becomes available to the
Primary Servicer); and
(D) financial statements and exhibits, if any,
required by Item 9.01 of Form 8-K.
(ii) Form 10-D Information. With respect to each ABS Issuing
Entity and each Distribution Date (for so long as such ABS Issuing Entity
is subject to Exchange Act reporting requirements), not later than the
date (in each month) set forth in Section 13.6 of the Pooling and
Servicing Agreement, the Primary Servicer shall deliver to the Depositor
or other Applicable Depositor (with a copy to the Master Servicer) a
report (a "Primary Servicer Form 10-D Information Report") setting forth
all of the information that is required to be included in the Asset-Backed
Issuer Distribution Report on Form 10-D ("Form 10-D") under the Exchange
Act relating to the Distribution Date occurring in such month, to the
extent that such information relates (i) to the Primary Servicer or (ii)
to the mortgage loans serviced by (and a servicing function of) the
Primary Servicer hereunder; provided, however, that the Primary Servicer
shall be required to deliver a Primary Servicer Form 10-D Information
Report each month only to the extent that an event requiring disclosure
under Form 10-D has occurred in such month, non-delivery of such report in
any given month being deemed to constitute a representation by the Primary
Servicer that no such event has occurred in such month. Such information
shall include, without limitation:
(A) a description of any material legal proceedings
involving the Primary Servicer or changes in the status thereof, all
as contemplated by Item 2 of Form 10-D and Item 1117 of Regulation
AB referred to therein;
(B) if any mortgage loan serviced hereunder and held
by the ABS Issuing Entity involves a Significant Obligor, the
financial information regarding such obligor that is required by
Item 6 of Form 10-D and Item 1112(b) of Regulation AB referred to
therein, to the extent such information is available to the Primary
Servicer (it being hereby acknowledged by the Primary Servicer that
it shall request, and shall use reasonable efforts in accordance
with the Servicing Standard to obtain, such information from the
obligor);
(C) any change in the information described in Item
1100(b)(5) of Regulation AB;
(D) the information described in Items 1121(a)(5) and
1121(a) (6) of Regulation AB (to the extent such information is not
in the CMSA reports described in Article I hereof); and
(E) exhibits, if any, required by Item 9 of Form 10-D.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long as it
is subject to
-27-
Exchange Act reporting requirements), not later than the date in each
month set forth in Section 13.7 of the Pooling and Servicing Agreement,
the Primary Servicer shall deliver to the Depositor or other Applicable
Depositor (with a copy to the Master Servicer) a report (a "Primary
Servicer Form 10-K Information Report") setting forth all of the
information (other than a report regarding its assessment of compliance, a
report by a registered public accounting firm that attests to and reports
on such assessment report and a statement of compliance, which reports and
statements shall be governed by subsection (c)(iv)) that is required to be
included in an Annual Report on Form 10-K (a "Form 10-K") under the
Exchange Act relating to the most recently ended calendar year, to the
extent that such information relates (i) to the Primary Servicer or (ii)
to the mortgage loans serviced by (and a servicing function of) the
Primary Servicer hereunder. Such information shall include, without
limitation:
(A) any information regarding legal proceeding
involving the Primary Servicer that is required to be reported by or
on behalf of the ABS Issuing Entity on such Form 10-K pursuant to
Instruction J(2)(d) to Form 10-K and Item 1117 of Regulation AB
referred to in such instruction;
(B) if any mortgage loan serviced hereunder and held
by such ABS Issuing Entity relates to a Significant Obligor of the
ABS Issuing Entity, the financial information regarding such obligor
that is required by Instruction J(2)(b) to Form 10-K and Item
1112(b) of Regulation AB referred to in such instruction; and
(C) the following descriptions of affiliations:
(I) a description of the existence and nature of
any affiliation between the Primary Servicer, on the one hand,
and any other person or entity described in Item 1119(a) of
Regulation AB, on the other, that is required to be described
in such Form 10-K under Item 1119(a) of Regulation AB;
(II) a description of the existence and character
of any relationship, agreement, arrangement, transaction or
understanding between the Primary Servicer or any affiliate of
the Primary Servicer, on the one hand, and any of the other
parties described in Item 1119(a) of Regulation AB, on the
other, that is required to be described in such Form 10-K
under Item 1119(b) of Regulation AB; and
(III) a description of any specific relationships
between the Primary Servicer or any affiliate of the Primary
Servicer, on the one hand, and any of the other parties
described in Item 1119(c) of Regulation AB (as construed in
relation to each of the Trust and each other ABS Issuing
Entity separately), on the other, that is required to be
described in such Form 10-K under Item 1119(c) of Regulation
AB.
-28-
(iv) Annual Compliance Information. Not later than November 1
of each year, the Primary Servicer shall deliver to the Master Servicer
the following reports and certifications:
(A) a report regarding its assessment of compliance
with the servicing criteria specified in Item 1122(d) of Regulation
AB, as of and for the period ending the end of the prior calendar
year, with respect to asset-backed securities transactions taken as
a whole that are backed by the same asset type as that included in
the ABS Issuing Entity, which report of assessment shall or would
conform to the criteria set forth in Item 1122(a) and Item
1122(c)(1) of Regulation AB;
(B) a report by a registered public accounting firm
that attests to, and reports on, the assessment described in the
preceding clause (A), which report shall be made in a manner that
conform or would conform to the standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board and shall or would conform to the requirements of
Item 1122(b) and Item 1122(c)(1) of Regulation AB; and
(C) a statement of compliance from the Primary
Servicer that shall or would comply with Item 1123 of Regulation AB,
and signed by an authorized officer of the Primary Servicer, to the
effect that: (a) a review of the Primary Servicer's activities
during the then most-recently ended calendar year and of its
performance under this Agreement has been made under such officer's
supervision and (b) to the best of such officer's knowledge, based
on such review, the servicer has fulfilled all of its obligations
under this Agreement in all material respects throughout the then
most-recently ended calendar year 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.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. Simultaneously
with its delivery of the Primary Servicer Form 10-K Information Report,
the Primary Servicer shall execute and deliver to or as directed by the
Master Servicer and/or the Applicable Depositor a backup certification,
which shall be substantially in the form attached as Exhibit CC-1 to the
Pooling and Servicing Agreement in support of any certification obligation
to which the Master Servicer, the depositor for the ABS Issuing Entity,
the trustee for the ABS Issuing Entity, the master servicer for the ABS
Issuing Entity (if other than the Master Servicer) or other similar party
is subject under the governing agreement for the ABS Issuing Entity in
connection with the certification requirements of the Xxxxxxxx-Xxxxx Act
of 2002, as amended, and Rule 302 of the Regulations with respect to the
mortgage loans serviced by the Primary Servicer under this Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by
the Primary Servicer shall appear under a cover substantially in the form
attached hereto as Exhibit E. Each
-29-
report, certification and statement that is delivered or rendered by the Primary
Servicer itself shall be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary Servicer under
this Agreement. Each report delivered by the Primary Servicer that contains
Primary Servicer Form 8-K Reporting Information, Primary Servicer Form 10-D
Reporting Information or Primary Servicer Form 10-K Reporting Information shall
appear in the same form that a Form 8-K, Form 10-D or Form 10-K is required to
appear under the Regulations, except that such report shall:
(i) omit the cover page that would be required under the
applicable form under the Regulations (but the report shall nonetheless
appear under a cover substantially in the form attached hereto as Exhibit
E, as contemplated above); and
(ii) omit to comply with the signature requirements that
would apply under the applicable form under the Regulations (but the
report shall nonetheless be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary Servicer
under this Agreement, as contemplated above, and shall contain a statement
to the effect that the report is submitted in connection with the
reporting obligations associated with the ABS Issuing Entity under the
Exchange Act).
In no event shall any statement or legend (whether such
statement or legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Master Servicer or the
Depositor in a report or certification filed with the SEC or otherwise pursuant
to the Regulations. The preceding statement shall not be construed to allow any
limitation on liability that is not otherwise contemplated under this Section.
(f) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans that
are not serviced under this Agreement: (i) the final prospectus supplement
prepared by the Depositor with respect to the offering of the securities issued
by the ABS Issuing Entity and (ii) any reports delivered from time to time by
the Master Servicer, the master servicer for the ABS Issuing Entity (if such
party is not the Master Servicer), the trustee for the ABS Issuing Entity and/or
the paying agent, certificate administrator or other similar party for the ABS
Issuing Entity.
(g) Servicing Transfers. Notwithstanding any resignation, removal
or termination of the Primary Servicer, or any assignment of the obligations of
the Primary Servicer, pursuant to the other provisions of this Agreement, the
Primary Servicer shall remain obligated to comply from time to time with the
reporting and certification obligations that would have been applicable under
subsection (c)(iii)(C) (report of affiliations), subsection (c)(iii)(D)
(assessment of compliance and related assessment by a public accounting firm),
subsection (c)(iii)(E) (compliance certification) and/or subsection (c)(iv)
(Xxxxxxxx-Xxxxx backup certification) in the absence of such resignation,
removal, termination or assignment, but only to
-30-
the extent related to the time period prior to the effective date of such
resignation, removal termination or assignment. Without limiting the generality
of the preceding statement, if the Primary Servicer voluntarily assigns its
obligations under this Agreement pursuant to the other provisions of this
Agreement (or with the consent of the Master Servicer), then the successor
Primary Servicer shall be obligated to cause the predecessor Primary Servicer to
perform the surviving reporting and certification obligations set forth above
and the failure to do so will constitute an "event of default" on the part of
the successor Primary Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to the
date of this Agreement. The parties acknowledge that the provisions of this
Section shall not be construed to require the Primary Servicer to sign any Form
8-K, Form 10-D or Form 10-K to be filed with respect to the ABS Issuing Entity
with the SEC (except to the extent, if any, that the Regulations require such
signature).
(i) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an interpretation of
the Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Master Servicer on the other, the
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, shall be conclusive and binding in the absence of manifest
error, and, for the purposes of this Agreement, the Primary Servicer shall be
entitled to rely on any such determination. If the Primary Servicer initiates
legal proceedings asserting an interpretation that differs from any such
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, the Primary Servicer shall comply with such determination of
the Master Servicer unless and until a final, nonappealable judgment is rendered
in connection with such proceedings, in which case such final, nonappealable
judgment shall control. If the Primary Servicer receives notice of
interpretations hereunder from the Master Servicer that conflict with each
other, the Primary Servicer shall promptly notify the Master Servicer, in which
case the Primary Servicer shall comply with the interpretation described in the
applicable written notice from the Master Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any
contrary provisions set forth in this Agreement, if the SEC or its staff issues
any order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the Applicable
Depositor and/or its affiliates or specifically to the applicable ABS Issuing
Entity, then, subject to the immediately succeeding sentence, the Primary
Servicer shall comply with such order, no-action letter or staff interpretation
insofar as such order, no-action letter or staff interpretation, or the
interpretations reflected therein, does or would (if implemented) affect the
reporting and certification obligations of the Primary Servicer hereunder. The
compliance obligation otherwise described in the preceding sentence shall not be
required unless there shall have been delivered to the Primary Servicer a notice
of such order, no-action letter or staff interpretation, which notice attaches a
copy of the applicable order, no-action letter or staff interpretation or
relevant excerpts thereof.
(k) [Reserved.]
-31-
(l) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 5.13 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Primary Servicer to delegate its obligations under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the
Exchange Act or the Regulations are amended to impose additional or more
stringent reporting and/or certification obligations with respect to the ABS
Issuing Entity, which additional or more stringent reporting and/or
certification obligations are not otherwise effective pursuant to the other
provisions of this Agreement, the parties hereto shall negotiate in good faith
for an amendment to this Section 5.13 to result in compliance with such law or
regulation as so amended. In the event that the Securities Act, the Exchange Act
or the Regulations are amended to reduce reporting and/or certification
obligations with respect to the ABS Issuing Entity, the parties hereto shall
negotiate in good faith for an amendment to this Section 5.13 to result in
compliance with such law or regulation as so amended.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Primary Servicer Default Each of the following events shall
constitute a "Primary Servicer Default" hereunder:
any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement;
or
except in the case of Section 6.1(c), any failure by the
Primary Servicer duly to observe or perform in any material respect any of
the covenants or agreements on the part of the Primary Servicer contained
in this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such failure and
the Certificateholders and holders of any B Note shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Primary Servicer to cure such failure;
provided, however, that such cure period may not exceed sixty (60) days;
and provided, further, that if such failure to observe or perform on the
part of the Primary Servicer would result in an Event of Default (or an
event that with notice or the passage of time would constitute such an
Event of Default) by the Master Servicer under the Pooling and
-32-
Servicing Agreement or applicable A/B Intercreditor Agreement, then the
cure periods described in this Section 6.1(b) shall not apply; or
any breach of the representations and warranties made pursuant
to Section 2.4(b) hereof or any failure by the Primary Servicer to comply
with one or more provisions of Section 5.13 or clause (d) of Article VII;
provided, however, that all of the following provisions shall apply:
(A) to the extent the Master Servicer determines, in
its reasonable discretion, following consultation with the
Applicable Depositor, that the Primary Servicer is in good faith
attempting to remedy such failure and no Certification Party will be
materially and adversely affected by giving the Primary Servicer an
opportunity to cure such failure, the Master Servicer may, following
consultation with the Applicable Depositor, give the Primary
Servicer such opportunity;
(B) the period of time to cure such failure may not
exceed three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would result in either
failure by the Master Servicer (or the master servicer in an Other
Securitization) to submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor (or another
Applicable Depositor) to submit to the SEC, timely, complete and
accurate reports of the type described in Article XIII of the
Pooling and Servicing Agreement;
(D) unless the Master Servicer otherwise consents, the
cure period described in this Section 6.1(c) shall end on the
earlier of (I) the date on which the Master Servicer has delivered
(or would be required to deliver) a report or certification to the
Applicable Depositor or to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer and (II) the date on which the
Applicable Depositor has delivered (or would be required to deliver)
a report or certification to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to
comply with any of its obligations under Section 5.13(c)(i),
5.13(c)(ii), 5.13(c)(iii), 5.13(c)(iv)(A), 5.13(c)(iv)(B) or
5.13(c)(iv)(C) hereof on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in,
such Sections, (x) the Primary Servicer subsequently complies with
such obligations before the Master Servicer gives written notice to
the Primary Servicer that it is terminated in accordance with this
Section 6.1(c) and Section 6.2, (y) the Primary Servicer's failure
to comply does not cause termination of the Master Servicer under
Section 8.28(a)(xi) and Section 8.29 of the Pooling and Servicing
Agreement, (z) the Primary Servicer's failure to comply does not
cause the Paying Agent to fail in its obligations to timely file the
related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the
related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing
Deadline, then such failure of the Primary Servicer to so comply
shall cease to be a Primary Servicer Default under this Section
6.1(c) on the date on which such Form 8-K, Form 10-D or Form 10-K is
so filed; or
-33-
any breach of the representations and warranties made pursuant
to Section 2.4(a) hereof that materially and adversely affects the
interest of the Master Servicer and that continues unremedied for a period
of twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such breach and the
Certificateholders and holders of any B Note shall not be materially and
adversely affected thereby, such cure period may be extended to the extent
necessary to permit the Primary Servicer to cure such breach; provided,
however, that such cure period may not exceed sixty (60) days; and
provided, further, that if such failure to perform on the part of the
Primary Servicer results in an Event of Default (or an event that with
notice or the passage of time would constitute such an Event of Default)
by the Master Servicer under the Pooling and Servicing Agreement or
applicable A/B Intercreditor Agreement, then the cure periods described in
this Section 6.1(c) shall not apply; or
any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
the Primary 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
any other event caused by the Primary Servicer which creates
an Event of Default (or an event that with notice or the passage time
would constitute or result in such an Event of Default) of the Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement; or
if Primary Servicer becomes or serves as Master Servicer at
any time, any failure by the Primary Servicer duly to observe or perform
in any material respect any of
-34-
the covenants or agreements of Master Servicer under the Pooling and
Servicing Agreement or under an A/B Intercreditor Agreement, which failure
continues unremedied beyond the expiration of applicable cure periods.
Primary Servicer agrees to give prompt written notice to the Master
Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Primary Servicer Default.
Termination The obligations and responsibilities of the Primary
Servicer as created hereby (other than as expressly provided herein) shall
terminate upon the earliest to occur of (i) the receipt by the Primary Servicer
of the Master Servicer's written notice of such termination delivered at the
Master Servicer's option following the occurrence of a Primary Servicer Default
other than as described in Section 6.1(c), (ii) the occurrence of a Primary
Servicer Default described in Section 6.1(c) and (iii) the later of the final
payment or other liquidation of (x) the last Mortgage Loan or (y) the A/B
Mortgage Loan (the "Primary Servicing Termination Date"). From and after the
Primary Servicing Termination Date, the Primary Servicer shall, if applicable,
continue to cooperate in the transfer of primary servicing, including the
delivery of files and transfer of accounts as contemplated hereby but shall have
no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement, the Pooling and
Servicing Agreement and each A/B Intercreditor Agreement may be assumed by a
successor Master Servicer or the Trustee upon a termination of the Master
Servicer's servicing rights pursuant to the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm to
Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder shall survive the Primary Servicing Termination Date, but
only to the extent such reimbursement relates to a period prior to the
termination of all of the Primary Servicer's obligations hereunder.
-35-
The rights of Master Servicer to terminate Primary Servicer upon the
occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
Post-Termination Obligations In the event of a termination of
primary servicing due to a Primary Servicer Default, the Primary Servicer shall
promptly deliver the Primary Servicer Servicing Documents as directed by the
Master Servicer and remit to the Master Servicer, by wire transfer of
immediately available funds, all cash held by the Primary Servicer with respect
to the related Mortgage Loans and A/B Mortgage Loans, and shall, if so requested
by the Master Servicer, assign to the Master Servicer or a Successor Primary
Servicer, as directed by the Master Servicer, and in such event the Master
Servicer shall assume, or cause the Successor Primary Servicer to assume, all
service contracts related to the Mortgage Loans and the A/B Mortgage Loans
transferred thereon but only to the extent such contracts are assignable and the
required consents (if any) to such assignments have been obtained. The Primary
Servicer shall use all reasonable efforts to obtain the consents required to
effect such assignments.
On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan and any A/B Mortgage Loan which are received by the Primary Servicer.
The Primary Servicer shall provide to the Master Servicer promptly
(but in no event later than ten (10) Business Days) after the Primary Servicing
Termination Date the following information, in each case as of such date: (a) a
ledger accounting itemizing the dates and amounts of all payments made, received
or applied by the Primary Servicer with regard to each Mortgage Loan and each
A/B Mortgage Loan, further itemizing principal and interest payments, tax
payments, special assessments, hazard insurance, mortgage insurance premiums,
ground rents, if any, and all other payments and (b) a current trial balance for
each such Mortgage Loan and A/B Mortgage Loan.
On a date to be agreed upon by the Primary Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the Primary Servicer shall commence and continue diligently to
completion at its own expense, to notify Mortgagors under the related Mortgage
Loans and A/B Mortgage Loans of the address to which payments on such Mortgage
Loans and A/B Mortgage Loans should be sent after the Primary Servicing
Termination Date; provided, however, that in any event, Primary Servicer shall
be obligated to notify Mortgagors within seven (7) Business Days of the Primary
Servicing Termination Date.
The Primary Servicer shall promptly forward to the Master Servicer,
at the Primary Servicer's expense all Mortgagor correspondence, insurance
notices, tax bills or any other correspondence or documentation related to any
Mortgage Loan and any A/B Mortgage Loan which is received by the Primary
Servicer after the Primary Servicing Termination Date.
The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and shall
forward to the Master Servicer and any Successor Primary Servicer such documents
as it may receive from time to time
-36-
regarding any Mortgage Loan or A/B Mortgage Loan transferred and provide such
other assistance as may reasonably be required by the Master Servicer or any
Successor Primary Servicer regarding such transfer.
The Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans and A/B Mortgage Loans accrued
through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
Additional Termination Notwithstanding any provision herein to the
contrary, this Agreement shall terminate with respect to any individual Mortgage
Loan or A/B Mortgage Loan (i) if and when such Mortgage Loan or A/B Mortgage
Loan becomes a Specially Serviced Mortgage Loan or an REO Mortgage Loan or (ii)
if and when such Mortgage Loan or A/B Mortgage Loan is sold or otherwise
disposed of by or on behalf of the Trust (which sale or disposition shall not
include the transformation of a Mortgage Loan or A/B Mortgage Loan into a
Defeasance Loan). In the event of such termination, the Primary Servicer shall
comply with Section 6.3 as if a Primary Servicer Default had occurred, except
that such Section shall be construed to relate only to such Mortgage Loan or A/B
Mortgage Loan and references therein to Primary Servicing Termination Date shall
be construed to mean the date of such termination, and (ii) the Primary Servicer
shall cooperate in the orderly transfer of the servicing of such Mortgage Loan
or A/B Mortgage Loan and shall forward to the Master Servicer such documents as
it may receive from time to time with respect thereto and provide such other
assistance as may reasonably be required by the Master Servicer with respect
thereto. Primary Servicer shall be entitled to all fees, compensation, interest
and earnings on such Mortgage Loan or A/B Mortgage Loan accrued through the date
of termination of its obligations and rights with respect to such Mortgage Loan
or A/B Mortgage Loan under this Agreement; provided, however, Primary Servicer
shall continue to collect the Excess Servicing Fee after termination in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement. If such Mortgage Loan or A/B Mortgage Loan subsequently becomes a
Rehabilitated Mortgage Loan, then the Primary Servicer shall promptly resume the
servicing of such Mortgage Loan or A/B Mortgage Loan in accordance with the
terms hereof.
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in the
case of material subcontracts and without prior notice to or the prior written
consent of the Master Servicer in the case of non-material subcontracts, the
Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans and A/B Mortgage
Loans; provided, however, that (a) the Primary Servicer shall remain fully
liable at all times for the performance of all Services and for all other
obligations hereunder; (b) in no event shall any such subcontractors make any of
the decisions, be given discretion to make any decisions, or have any authority
to make any decisions, required as part of a Category 1 Request or Category 2
Request or any decision or recommendation involving the exercise of the Primary
Servicer's discretion as a "lender" under any of the Loan Documents for the
Mortgage Loans and the A/B Mortgage Loans; (c) the Primary Servicer shall
maintain and perform policies and procedures to
-37-
monitor such subcontractors' performance of the services for which they are
employed; and (d)(i) the Primary Servicer shall not, for so long as any ABS
Issuing Entity is subject to the reporting requirements of the Exchange Act,
engage any "Subcontractor" (as defined in the Pooling and Servicing Agreement)
after the Closing Date without the Master Servicer's and the Depositor's prior
written consent, which, in either case, shall not be unreasonably withheld and
(ii) the Primary Servicer shall, with respect to each such Subcontractor with
which it has entered into a servicing relationship with respect to the Mortgage
Loans after the Closing Date, (A) include in a written agreement between the
Primary Servicer and such Subcontractor provisions analogous to those of Section
5.13 hereof, Section 6.1(c) hereof, Section 2.4(b) hereof, this clause (d) of
this Article VII, the last sentence of Section 10.11 hereof, the last sentence
of Section 10.13 hereof and the last sentence of Section 13.14 of the Pooling
and Servicing Agreement and (B) use reasonable efforts to cause such
Subcontractor to comply with the report delivery, indemnification and
contribution obligations set forth in such analogous provisions.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage Loans held
by the Primary Servicer, including but not limited to the Primary Servicer
Servicing Documents, mortgage servicing documents, books, computer tapes and
other documents and records (except for microfilm records) as well as any
reproductions or copies of such records furnished for the purposes of performing
Services from the Cut-off Date are, and shall continue at all times to be, held
by the Primary Servicer for the benefit of the Master Servicer and for the
Trustee and shall not be released, disseminated or otherwise made available to
third parties without the prior written consent of the Master Servicer.
INDEMNIFICATION
Primary Servicer's Indemnity The Primary Servicer shall indemnify
the Master Servicer, its officers, employees and agents against, and hold the
Master Servicer harmless from, any and all losses, liabilities, expenses,
claims, demands, costs, or judgment of any type against the Master Servicer
arising out of or related to (i) a negligent or willful failure of the Primary
Servicer or any Person hired by the Primary Servicer to perform properly any of
the Services to be performed by the Primary Servicer pursuant to the Payment and
Collection Description, the Payment and Mortgage Loan Status Reports, Post
Closing Matters Description and Task Description, (ii) any failure by the
Primary Servicer to perform its obligations under this Agreement, or (iii)
breach of any of the Primary Servicer's representations and warranties
hereunder; provided, however, that the Primary Servicer shall not be required to
indemnify the Master Servicer, its officers, employees or agents against or hold
the Master Servicer, its officers, employees or agents harmless from any losses
to the extent that such loss is caused by the actions of the Master Servicer,
its officers, employees or agents in violation of the Master Servicer's duties
under this Agreement, under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement (except to the extent that such failure was caused by
the Primary Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Master Servicer shall promptly notify the
Primary Servicer if a claim is made by a third party with respect to this
-38-
Agreement or the Mortgage Loans or the A/B Mortgage Loans entitling the Master
Servicer to indemnification hereunder. The Primary Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Primary Servicer shall not affect any of the Master Servicer's rights to
indemnification.
Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, any holder of a B Note, the
Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith and using its reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Primary Servicer or any such
person against any breach of a covenant, representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties or by reason
of reckless disregard for its obligations and duties under this Agreement. The
Primary Servicer and any director, officer, employee or agent of the Primary
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Master Servicer's Indemnity The Master Servicer shall indemnify the
Primary Servicer, its officers, employees and agents against, and hold the
Primary Servicer harmless from, any and all losses, liabilities, expenses,
claims, demands, costs, or judgment of any type against the Primary Servicer, to
the extent arising out of, or related to reliance by the Primary Servicer on,
(i) pursuant to Section 5.13(i), an interpretation of the Securities Act, the
Exchange Act or the Regulations set forth in a written notice from the Master
Servicer to the Primary Servicer or (ii) any incorrect asset pool balance
supplied by the Master Servicer with respect to the HQ12 Trust, if such
incorrect balance is the cause of any incorrect determination by the Primary
Servicer that an obligor on a Mortgage Loan is not a Significant Obligor. The
indemnification provided under this Section 9.2 shall survive the Primary
Servicing Termination Date.
MISCELLANEOUS
Severability If any term, covenant, condition or provision hereof is
unlawful, invalid, or unenforceable for any reasons whatsoever, and such
illegality, invalidity, or unenforceability does not affect remaining part of
this Agreement, then all such remaining parts hereof shall be valid and
enforceable and have full force and effect as if the invalid or unenforceable
part had not been included.
Rights Cumulative; Waivers The rights of each of the parties under
this Agreement are cumulative and may be exercised as often as any party
considers appropriate. The rights of each of the parties hereunder shall not be
capable of being waived or amended other than by an express waiver or amendment
in writing. Any failure to exercise (or any delay in exercising) any of such
rights shall not operate as a waiver or amendment of that or any other such
right. Any defective or partial exercise of any of such right shall not preclude
any other or
-39-
further exercise of that or any other such right. No act or course of conduct or
negotiation on the part of any party shall in any way stop or preclude such
party from exercising any such right or constitute a suspension or any waiver of
any such right.
Headings The headings of the Sections and Articles contained in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Construction Unless the context otherwise requires, singular nouns
and pronouns, when used herein, shall be deemed to include the plural of such
noun or pronoun and pronouns of one gender shall be deemed to include the
equivalent pronoun of the other gender. This Agreement is the result of
arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
Assignment (a) This Agreement and the terms, covenants, conditions,
provisions, obligations, undertakings, rights and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned parties and
their respective permitted successors and assigns. This Agreement and the rights
and benefits hereunder of the Primary Servicer shall not be assignable, and the
duties and obligations hereunder of such party shall not be delegable, except
that in the following instances, Primary Servicer may assign, sell or transfer
its rights under this Agreement without the consent of (but upon written notice
to) the Master Servicer:
Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to a parent
company of Primary Servicer or a wholly-owned subsidiary or Affiliate of
such party, or a successor by merger or as the result of a demutualization
of a parent company of Primary Servicer, as long as such successor has net
assets and net worth equal to or greater than the net assets and net worth
of the Primary Servicer.
Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to an entity
that then serves as a primary servicer for other mortgage loans held by
the Trust at the time of such assignment, sale or transfer.
With the prior written consent of the Master Servicer and the
Depositor which consent shall not be unreasonably withheld or delayed,
Primary Servicer may assign, sell or transfer its rights and obligations
under this Agreement (in whole and not in part) to any master or primary
servicer, if (1) such entity is either (a) rated by the Rating Agencies as
satisfactory or its equivalent in such capacity or (b) approved by the
Special Servicer and Operating Advisor (in addition to Master Servicer as
provided above), which approval shall not be unreasonably withheld or
delayed, and (2) Primary Servicer at its sole cost receives Rating Agency
Confirmation from the Rating Agencies prior to such assignment, sale or
transfer.
-40-
Primary Servicer may subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to
the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be effective
until such Successor Primary Servicer enters into a written agreement reasonably
satisfactory to the Master Servicer and the Depositor agreeing to be bound by
the terms and provisions of this Agreement (but not altering the obligations
under this Agreement); and (ii) not relieve the assigning Primary Servicer of
any duties or liabilities arising or incurred prior to such assignment. Any
costs or expenses incurred in connection with such assignment shall be payable
by the assigning Primary Servicer. Any assignment or delegation or attempted
assignment or delegation in contravention of this Agreement shall be null and
void. The proceeds of any assignment, sale or transfer permitted under this
Section 10.5 or to which consent was granted shall belong solely to the assignor
of such rights, and Master Servicer shall have no claim to them.
Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary Servicer's duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it. Any such determination permitting the resignation
of the Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer shall
have assumed the Primary Servicer's responsibilities and obligations under this
Agreement, and Special Servicer and Operating Advisor shall have consented to
such successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Master Servicer of
Primary Servicer's responsibilities and obligations under this Agreement
pursuant to this Section 10.6(a) shall not require the consent of Special
Servicer or Operating Advisor.
The Primary Servicer may resign from the obligations and duties
imposed on it, upon 60 days' notice to the Master Servicer, provided that (i)
the Primary Servicer bears all costs associated with its resignation and the
transfer of servicing; (ii) Primary Servicer designates a successor servicer to
assume Primary Servicer's responsibilities and obligations under this Agreement;
(iii) Master Servicer, Special Servicer and Operating Advisor shall consent to
such successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the designation and assumption by Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this Section
10.6(b) shall not require the consent of Special Servicer or Operating Advisor.
In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of resignation
under subsections (a) or (b) above, as the case may be.
Prior Understandings This Agreement supersedes any and all prior
discussions and agreements between or among the Seller, the Primary Servicer and
the Master Servicer with
-41-
respect to the Servicing of the Mortgage Loans and the A/B Mortgage Loans and
the other matters contained herein. This Agreement, together with the Pooling
and Servicing Agreement and each A/B Intercreditor Agreement, contain the sole
and entire understanding between the parties hereto with respect to the
transactions contemplated herein. Every effort shall be made to construe this
Agreement, the Pooling and Servicing Agreement and each A/B Intercreditor
Agreement consistently. If a conflict exists between such agreements, then the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
applicable A/B Intercreditor Agreement shall control. If this Agreement requires
Primary Servicer to perform a task or duty, the details and obligations of which
are (a) set forth in this Agreement and (b)(i) are not set forth in the Pooling
and Servicing Agreement or with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement, (ii) are set forth in the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement only in general terms, then Primary Servicer shall
perform such task and duties in accordance with the details and obligations set
forth in this Agreement. If this Agreement requires Primary Servicer to perform
a task or duty, the details and obligations of which are not set forth in this
Agreement but are contained in the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement,
then the Primary Servicer shall perform such task and duties in accordance with
the Pooling and Servicing Agreement.
Integrated Agreement This Agreement constitutes the final complete
expression of the intent and understanding of the Primary Servicer and the
Master Servicer and may not be altered or modified except by a subsequent
writing, signed by the Primary Servicer and the Master Servicer.
Counterparts This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
Governing Laws This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Notices Unless otherwise provided for herein, all notices and other
communications required or permitted hereunder shall be in writing (including a
writing delivered by facsimile transmission) and shall be deemed to have been
duly given (a) when delivered, if sent by registered or certified mail (return
receipt requested), if delivered personally or by facsimile or (b) on the second
following Business Day, if sent by overnight mail or overnight courier, in each
case to the parties at the following addresses (or at such other addresses as
shall be specified by like notice);
If to the Master Servicer: As set forth in Section 13.5 of
the Pooling and Servicing Agreement
If to the Primary Servicer: _________________________________
_________________________________
_________________________________
-42-
_________________________________
_________________________________
Telephone No.: _________________
Facsimile No.: __________________
Amendment In the event that the Pooling and Servicing Agreement or
an A/B Intercreditor Agreement is amended, this Agreement shall be deemed to
have been amended and to the extent necessary to reflect such amendment to the
Pooling and Servicing Agreement or such A/B Intercreditor Agreement, but no such
amendment to the Pooling and Servicing Agreement or A/B Intercreditor Agreement
or deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Primary Servicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed. For so long
as any ABS Issuing Entity is subject to the reporting requirements of the
Exchange Act, the parties hereto may not amend or modify any provision of
Section 5.13, Section 6.1(c), Section 2.4(b), clause (d) of Article VII, the
last sentence of Section 10.13, or this sentence without the Depositor's prior
written consent.
Notwithstanding anything to the contrary contained in this Section 10.11,
the parties hereto agree that this Agreement may be amended pursuant to Section
5.11 herein without any notice to or consent of any of the Certificateholders,
any B Note holder, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
Other This Agreement shall not be construed to grant to any party
hereto any claim, right or interest in, to or against the trust fund created
pursuant to the Pooling and Servicing Agreement or any assets of such trust
fund.
Benefits of Agreement Nothing in this Agreement, express or implied,
shall be construed to grant to any Mortgagor or other Person, other than the
parties to this Agreement and the parties to the Pooling and Servicing
Agreement, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement, except that the Depositor, any other Applicable Depositor
and any master servicer for an ABS Issuing Entity other than the HQ12 Trust are
intended third-party beneficiaries of Section 5.13.
[END OF PAGE]
-43-
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of
the parties hereto by an authorized representative, all as of the day and year
first above written.
_______________________________________,
acting solely in its capacity as Master
Servicer under the Pooling and
Servicing Agreement
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULES
SCHEDULE II
[RESERVED]
EXHIBIT A
POOLING AND SERVICING AGREEMENT
SEE COPY OF SIGNED POOLING AND SERVICING AGREEMENT DELIVERED UNDER SEPARATE
COVER.
EXHIBIT B
EXHIBIT B-1: PAYMENT AND MORTGAGE LOAN STATUS REPORTS
EXHIBIT B-2: OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST
CLOSING REQUESTS
EXHIBIT B-3: FORM OF PROPERTY INSPECTION REPORTS
EXHIBIT B-4: TASK DESCRIPTION
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
EXHIBIT B-1(A): REMITTANCE REPORT FOR PAYMENTS RECEIVED ON MORTGAGE
LOANS DURING THE APPLICABLE COLLECTION PERIOD
EXHIBIT B-1(B): DELINQUENCY REPORT
EXHIBIT B-1(C): REAL ESTATE TAX DELINQUENCY REPORT
EXHIBIT B-1(D): INSURANCE MONITORING REPORT
EXHIBIT B-1(E): UCC FORM MONITORING REPORT
EXHIBIT B-1(F): DAY ONE REPORT
EXHIBIT B-2
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
EXHIBIT B-2(A): OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY
ON POST CLOSING REQUESTS
EXHIBIT B-2(B): CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
EXHIBIT B-2(C): PROCESS FOR HANDLING POST CLOSING REQUESTS UPON
CLASSIFICATION
EXHIBIT B-2(A)
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
When Primary Servicer receives a request from a Mortgagor or other obligor
under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action ("Post
Closing Request") on its related Mortgage Loan or A/B Mortgage Loan, Primary
Servicer shall classify each Post Closing Request into one of the following
three (3) categories:
1. Post Closing Requests over which Primary Servicer shall have
decision making authority to analyze, consent to, approve and
process such requests, subject to consent rights in certain
circumstances set forth in Exhibit B-2(c) below and, where
applicable, Deemed Category 1 Requests ("Category 1 Requests");
2. Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information
together with a written analysis and recommendation for the consent
and approval of such requests to the Master Servicer or Special
Servicer, as applicable; other than Deemed Category 1 Requests
("Category 2 Requests"); and
3. Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be classified
into one of the three (3) categories specified above and the materials that
follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance with
the Servicing Standard, the terms of this Agreement, the Pooling and Servicing
Agreement and with respect to any A/B Mortgage Loan, its applicable A/B
Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection Description,
Payment and Collection Reporting or Property Inspection Description, which is
covered elsewhere in this Agreement.
EXHIBIT B-2(B)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
------------------------------------------------------------------------------------------------------------------------------
Category When Applicable Examples Allocation of Fees
==============================================================================================================================
1 Category 1 Post Closing Request is Transfer rights contemplated in Loan Primary Servicer collects entire
Requests (other than either (a) specifically Documents (including without administrative or processing fee
Deemed Category 1 authorized in the related limitation assignment and assumption (including without limitation
Requests) Loan Documents (as defined rights); partial releases defeasance fees), legal fees and
in Exhibit B-2(c)(A.1(b)), contemplated in Loan Documents; out-of-pocket expenses and 80%
either expressly as a easements contemplated in Loan of any additional fees or
matter of right in favor of Documents; evaluation of alterations portions of fees (including
the Mortgagor or upon the under specified threshold; without limitation transfer
satisfaction of certain administer, monitor and release of fees) payable to Master Servicer
specified conditions reserve or escrow amounts in under Pooling and Servicing
(including the exercise of accordance with reserve or escrow Agreement (i.e. transfer fee).
any specified standard of agreements; approval of leases below Other 20% of such additional
consent or judgment within threshold specified in Loan fees are payable to Master
such conditions subject to Documents; additional lien, monetary Servicer. Special Servicer
the terms of this encumbrance or mezzanine financing would receive any portion of
Agreement); or (b) seeks placed on Mortgaged Property that is fees due it under the Pooling
the approval of the related specifically contemplated in Loan and Servicing Agreement. Master
Mortgagee under the related Documents under specified Servicer may also collect its
Loan Documents for a Lease conditions; or process of defeasing out-of-pocket expenses which it
and/or the issuance of an a Mortgage Loan (except defeasance shall itemize in reasonable
SNDA for a Lease. of a Specially Serviced Mortgage detail.(1)
Loans which shall not be the
responsibility of the Primary
Servicer) and servicing of Mortgage
Loans and A/B Mortgage Loans that
have been defeased; approval of a
Lease requiring such approval of
Mortgagee under the Loan Documents;
or issuance of an SNDA.
------------------------------------------------------------------------------------------------------------------------------
2 Category 2 Post Closing Request (other Consent to easement not contemplated For all Mortgage Loans, other
Requests for all than Category 3 Request) is in Loan Documents; partial releases than A/B Mortgage Loans:
Mortgage Loans (a) not specifically not specifically contemplated in Primary Servicer entitled to one
(other than A/B authorized or is prohibited Loan Documents; or subordinate or hundred percent (100%) of
Mortgage Loans) and or not addressed in the mezzanine financing not specifically administrative or processing
Deemed Category 1 Loan Documents; and (b) not contemplated in Loan Documents. fee. Additional fees are
Requests seeking approval of a Lease payable to Master Servicer
requiring such approval of and/or Special Servicer as
Mortgagee under the related specified in Pooling and
Loan Documents or issuance Servicing Agreement. Master
of an SNDA. Servicer may also collect its
out-of-pocket expenses.(1)
For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
------------------------------------------------------------------------------------------------------------------------------
3 Category 3 Post Closing Requests to Changes to maturity date, interest Primary Servicer not entitled to
Requests Money Terms, Defaulted rate, principal balance, amortization fee. Master Servicer or Special
==============================================================================================================================
________________________
(4) No reference is made in this chart to the Aggregate Servicing Fee
which shall be collected and governed in accordance with the terms
of Sections 2.1, 2.3, 6.3 and 6.4 of this Agreement.
------------------------------------------------------------------------------------------------------------------------------
Category When Applicable Examples Allocation of Fees
==============================================================================================================================
Mortgage Loans or Mortgage term, payment amount or Servicer is entitled to fees as
Loans upon which a frequency; or provided in the Pooling and
Servicing Transfer Event any actions to loan in default. Servicing Agreement.(1)
has occurred.
------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B-2(C)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
Process for disposition of Post Closing Requests Once Classification is Made.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
a. Category 1 Requests and Deemed Category 1 Requests:
i) If Primary Servicer classifies a Post Closing Request as a
Category 1 Request or Deemed Category 1 Request, it shall promptly (but in no
event more than five (5) Business Days after receiving such request) notify
Master Servicer of (a) such request; (b) Primary Servicer's classification of
the Post Closing Request as a Category 1 Request or Deemed Category 1 Request;
and (c) Primary Servicer's Materiality Determination regarding any Category 1
Consent Aspect involved in such request. Notwithstanding the foregoing, as a
result of the quarterly reconciliation of reserve accounts that Primary Servicer
provides to Master Servicer under this Agreement, Primary Servicer shall have no
obligation (a) except as required under Section 8.18(d) of the Pooling and
Servicing Agreement, to notify or seek the consent of Master Servicer or Special
Servicer (as applicable) of any disbursement made from an escrow or reserve
account pursuant to and in accordance with the terms of such agreement governing
such reserve or escrow or (b) to seek consent of Master Servicer to extend (1)
the time available to a Mortgagor to complete repairs, replacements or
improvements pursuant to an escrow or reserve agreement or (2) the expiration
date of any letters of credit associated with such escrow or reserve, as long as
(i) Primary Servicer promptly notifies Master Servicer in writing of such
extension; (ii) the amount being held pursuant to the applicable escrow or
reserve agreement at the time of the proposed extension is less than
$1,000,000.00; (iii) the length of such extension when added to all other
extensions granted after the Closing Date does not exceed one hundred eighty
(180) days; and (iv) any such extension is in accordance with the terms of this
Agreement (including without limitation the Servicing Standard) and the Pooling
and Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement.
ii) Primary Servicer shall evaluate the Category 1 Request or
Deemed Category 1 Request and process such request to meet the requirements set
forth in the loan documents for the applicable Mortgage Loan ("Loan Documents")
in a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement. Such evaluation and processing may commence, and
continue but may not be completed prior to Primary Servicer's notice to Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request in
accordance with the terms of the Loan Documents, this Agreement and the Pooling
and Servicing Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement.
iii) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1 Requests:
If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage
Loan) and the Loan Documents for such
Mortgage Loan or A/B Mortgage Loan expressly provide for
a defeasance, Primary Servicer shall treat such request
as a Category 1 Request but shall, in addition to the
other provisions of this Section 1 of Exhibit B-2(c),
seek the prior written consent of Master Servicer prior
to consenting to such defeasance, which consent shall
not be withheld or delayed unreasonably when Primary
Servicer submits to Master Servicer the items
substantially as set forth on Appendix 1 of this
Agreement relating to such defeasance, and any such
decision of Master Servicer shall be in accordance with
the terms of the Loan Documents and the Servicing
Standard. Failure of the Master Servicer to notify the
Primary Servicer in writing of Master Servicer's
determination to grant or withhold such consent, within
five (5) Business Days following the Primary Servicer's
delivery of the request for defeasance described above
and the relevant information collected on such
defeasance, shall be deemed to constitute a grant of
such consent.
If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan
or A/B Mortgage Loan (other than a Specially Serviced
Mortgage Loan) to another Person who shall assume the
Mortgage Loan or A/B Mortgage Loan and the Loan
Documents expressly permit such assignment and
assumption, subject to any conditions set forth in the
Loan Documents, Primary Servicer may treat such request
as a Category 1 Request but shall, in addition to the
other provisions of this Section 1 of Exhibit B-2(c),
seek the prior written consent of Special Servicer prior
to consenting to such assignment and assumption in
accordance with the terms of Section 8.7 of the Pooling
and Servicing Agreement (subject to any time periods
applicable to Primary Servicer or Special Servicer for
the giving, granting or deemed granting of such consent
contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items substantially
as set forth on Appendix 2 of this Agreement relating to
such assignment and assumption. For the purpose of the
foregoing sentence, the term "expressly permits" shall
have the meaning assigned to it in Section 8.7 of the
Pooling and Servicing Agreement.
If a Mortgagor requests consent to place an additional
lien, monetary encumbrance or mezzanine financing on the
related Mortgaged Property and the Loan Documents
expressly permit such additional lien, monetary
encumbrance or mezzanine financing, subject to any
conditions set forth in the Loan Documents, Primary
Servicer may treat such request as a Category 1 Request
but shall, in addition to the other provisions of this
Section 1 of Exhibit B-2(c), seek the prior written
consent of Special Servicer prior to consenting to such
additional lien, monetary encumbrance or mezzanine
financing in accordance with the terms of Section 8.7 of
the Pooling and Servicing Agreement (subject to any time
periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of
such consent contained in the Pooling and Servicing
Agreement) by submitting to Special Servicer the items
substantially as set forth on Appendix 3 of this
Agreement relating to such additional lien, monetary
encumbrance or mezzanine financing. For the purpose of
the foregoing sentence, the term "expressly permits"
shall have the meaning assigned to it in Section 8.7 of
the Pooling and Servicing Agreement.
If a Mortgagor requests consent to enter into a Lease on
the related Mortgaged Property (and/or the associated
issuance of an SNDA for such Lease), which Lease (a)
requires the consent of the Mortgagee under the related
Loan Documents and (b) qualifies as a Significant Lease,
Primary Servicer may treat such request as a Category 1
Request but shall, in addition to the other provisions
of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Master Servicer, which consent shall
not be withheld or delayed unreasonably, prior to
consenting to or disapproving of such Significant Lease
(and/or the related SNDA) by submitting to Master
Servicer the items substantially as set forth on
Appendix 4 of this Agreement relating to such
Significant Lease (and/or related SNDA). Failure of the
Master Servicer to notify the Primary Servicer in
writing of Master Servicer's determination to grant or
withhold such consent within ten (10) Business Days
following the Primary Servicer's delivery of the request
for consent to the Lease, shall be deemed to constitute
a grant of such consent.
If Primary Servicer makes a Materiality Determination that
a Category 1 Consent Aspect is material, then Primary
Servicer shall treat such request as a Category 1
Request, but shall, in addition to the other provisions
of this Section A.1 of this Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to
consenting to the applicable Category 1 Request, which
consent shall not be withheld or delayed unreasonably,
and any such decision of Special Servicer shall relate
only to the Category 1 Consent Aspect and shall be in
accordance with the terms of the Loan Documents and the
Servicing Standard. Failure of the Special Servicer to
notify the Primary Servicer in writing of Special
Servicer's determination to grant or withhold such
consent, within five (5) Business Days following the
Primary Servicer's delivery of the request for consent
to the Category 1 Consent Aspect, shall be deemed to
constitute a grant of such consent.
iv) Upon conclusion of the negotiations of the documentation for
the Category 1 Request or Deemed Category 1 Request, Primary Servicer may
execute and deliver the operative documents to be executed to effect the
Category 1 Request and take the other actions necessary or appropriate to
conclude such request, in each case in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement.
v) Concurrently with the execution of this Agreement, Master
Servicer shall provide to Primary Servicer a counterpart original of the Power
of Attorney executed by the Trust in favor of the Master Servicer and shall
execute and deliver to Primary Servicer a Power of Attorney attached to this
Agreement as Exhibit C. Primary Servicer shall promptly notify Master Servicer
of the execution and delivery of any document on behalf of the Master Servicer
and Trustee under such Power of Attorney ("POA Notice").
vi) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
1 Request or Deemed Category 1 Request. Such request shall not relieve Primary
Servicer of its obligations under this Agreement regarding a Category 1 Request
or Deemed Category 1 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
vii) Upon completion of each Category 1 Request or Deemed Category
1 Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Master Servicer and Special
Servicer (if its consent was required) and shall accompany such notice with a
brief summary of the Category 1 Request or Deemed Category 1 Request, a brief
summary of Primary Servicer's analysis and decision regarding such request, a
POA Notice (if required) and a counterpart original or copy of the operative
documents executed or received to effect the Category 1 Request or Deemed
Category 1 Request.
viii) Notwithstanding the foregoing with the consent of Master
Servicer, Primary Servicer may elect to classify and treat a Post Closing
Request that otherwise qualifies as a Category 1 Request or Deemed Category 1
Request, as a Category 2 Request instead. In such case, Primary Servicer shall
adhere to the provisions of this Agreement regarding Category 2 Requests or
Deemed Category 1 Requests, and all aspects of such request (including without
limitation the allocation of fees) shall be governed by the terms of this
Agreement covering Category 2 Requests. Primary Servicer's decision in any one
instance to treat a Post Closing Request that otherwise qualifies as a Category
1 Request or Deemed Category 1 Request, as a Category 2 Request instead, shall
not compromise or affect its right on any other occasion to treat a similar
request as a Category 1 Request or Deemed Category 1 Request.
ix) Notwithstanding anything to the contrary in this Section 1, if
a Category 1 Request or Deemed Category 1 Request involves an action requiring
the consent of Special Servicer under Section 8.18(d) of the Pooling and
Servicing Agreement, Primary Servicer shall not be permitted to take any such
actions without the consent of Special Servicer in accordance with such Section
8.18(d). For any action relating to a Mortgage Loan or an A/B Mortgage Loan
requiring the consent of Special Servicer under Section 8.18(d) of the Pooling
and Servicing Agreement, Primary Servicer shall have the responsibility to seek
the consent of Special Servicer in accordance with such section. The foregoing
conditions and requirements shall be in addition to the other conditions and
requirements for Category 1 Requests or Deemed Category 1 Requests as set forth
above.
b. Category 2 Requests (other than Deemed Category 1 Requests):
x) If Primary Servicer classifies a Post Closing Request as a
Category 2 Request, it shall promptly (but in no event more than five (5)
Business Days after Primary Servicer's receiving such request) notify Master
Servicer of receiving such request, of the type of request and of Primary
Servicer's classification of the Post Closing Request as a Category 2 Request.
As part of such notice, Primary Servicer shall include the following:
If such type of request has not previously been the subject
of a Category 2 Request or a Requirements List (as
defined below) has not previously been provided to
Primary Servicer, then Primary Servicer shall request
from Master Servicer a detailed list of the requirements
to be satisfied for such request (the "Requirements
List"). Master Servicer shall promptly (but in no event
more than five (5) Business Days after receiving
notification of such request) provide to Primary
Servicer a Requirements List for such request.
If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer
shall submit the existing Requirements List to Master
Servicer. Primary Servicer may use such Requirements
List for such request unless Master Servicer provides to
Primary Servicer a replacement Requirements List within
five (5) Business Days of such notice.
xi) A Requirements List (i) shall in no event be more burdensome
than that required by Master Servicer of other loans in the Trust for similar
Post Closing Requests; (ii) shall not require Primary Servicer to incur
additional third party costs or expenses; and (iii) shall require the gathering,
collection and assembling of information only and not the preparation,
evaluation, analysis of information or a recommendation regarding the Post
Closing Request.
xii) Primary Servicer shall then use diligent efforts to collect
and assemble the items on the applicable Requirements List. Upon such collection
and assembly, Primary Servicer shall provide to Master Servicer all of the
assembled items, a list of the items collected from the Requirements List, a
list of any items not collected, any reasons why such items were not collected,
a written analysis of the Category 2 Request in light of the items collected in
a form reasonably satisfactory to Master Servicer, a recommendation whether to
approve or disapprove such request and the appropriate division of the
applicable fees in accordance with the terms of this Agreement and the Pooling
and Servicing Agreement.
xiii) Master Servicer shall use its reasonable best efforts to
notify Primary Servicer with a consent or disapproval of the Category 2 Request
within ten (10) Business Days of receiving such assembled items, analysis and
recommendation. If Master Servicer disapproves such request, it shall provide
Primary Servicer the reasons for such disapproval. If Master Servicer approves
such request, Primary Servicer shall promptly process the Category 2 Request in
a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall draft, or cause to be drafted,
all documents necessary to effect the Category 2 Request in accordance with the
terms of the consent, the Loan Documents, this Agreement and the Pooling and
Servicing Agreement, and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall deal directly with the
applicable Mortgagor regarding a Category 2 Request after Primary Servicer
submits the items on the applicable Requirements List.
xiv) Upon conclusion of the negotiations of the documentation for
the Category 2 Request for which Master Servicer has granted its consent,
Primary Servicer may
execute and deliver the operative documents to be executed to effect the
Category 2 Request and take the other actions necessary or appropriate to
conclude such request, in each case in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement.
xv) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
2 Request, which documents shall be prepared by the Primary Servicer. Such
request shall not relieve Primary Servicer of its obligations under this
Agreement regarding a Category 2 Request, including without limitation its
obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement and any indemnification
obligation of Primary Servicer.
xvi) Upon completion of each Category 2 Request, Primary Servicer
shall promptly (but in no event more than ten (10) Business Days after
concluding such request) notify Master Servicer and shall accompany such notice
with a copy of the operative documents executed or received to effect the
Category 2 Request.
xvii) Notwithstanding anything to the contrary in this Section 2, if
a Category 2 Request involves an action requiring the consent of Special
Servicer under Section 8.18(d) of the Pooling and Servicing Agreement, Primary
Servicer shall not be permitted to take any such action without the consent of
Special Servicer in accordance with such Section 8.18(d). For any action
relating to a Mortgage Loan or an A/B Mortgage Loan requiring the consent of
Special Servicer under Section 8.18(d) of the Pooling and Servicing Agreement,
Primary Servicer shall have the responsibility to seek the consent of Special
Servicer in accordance with such section. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 2 Requests as set forth above.
c. Category 3 Requests:
xviii) If Primary Servicer classifies a Post Closing Request as a
Category 3 Request, it shall promptly (but in no event more than five (5)
Business Days after receiving such request) notify Master Servicer and Special
Servicer of receiving such request and of Primary Servicer's classification of
the Post Closing Request as a Category 3 Request and shall refer such Category 3
Request to the Special Servicer for handling in accordance with the Pooling and
Servicing Agreement.
xix) Upon such referral, Primary Servicer shall notify the
applicable Mortgagor of such referral and shall direct the Mortgagor that all
further correspondence and interaction regarding the applicable Category 3
Request shall be directed to and through the Special Servicer (unless the
Special Servicer and Master Servicer shall otherwise direct the Primary
Servicer). Primary Servicer shall forward all correspondence and other
information regarding such request in its possession to Special Servicer.
Dispute of Classification.
d. Notification of Dispute. If either Master Servicer or Special
Servicer disputes the classification of Primary Servicer of any Post Closing
Request (for purposes of this Section B,
the term "classification" shall include a Materiality Determination of Primary
Servicer regarding a Category 1 Consent Aspect with respect to such Post Closing
Request), then Master Servicer or Special Servicer, as applicable, shall notify
Primary Servicer of such dispute promptly (but in no event more than five (5)
Business Days from Primary Servicer's notice of such classification) in writing
and the specific reasons for such dispute. The parties shall then work in good
faith for a period not more than five (5) Business Days to resolve the
classification of the Post Closing Request. Primary Servicer's classification of
a Post Closing Request shall govern the handling of such request absent Primary
Servicer's receipt of notice of such dispute within the specified time period
but shall not diminish the obligation of Primary Servicer to classify Post
Closing Requests in accordance with this Agreement and to handle such requests
in accordance with this Agreement and the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the related A/B Intercreditor Agreement.
e. Resolution of Dispute in Absence of Agreement. If after such good
faith efforts to resolve such classification dispute the parties cannot agree to
a classification, then the following shall apply: For Mortgage Loans or A/B
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is in excess of two percent (2%) of
the then Aggregate Principal Balance, then the good faith classification of the
Master Servicer or Special Servicer, as applicable, shall govern. For Mortgage
Loans that individually, or together with all other Mortgage Loans and A/B
Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is equal to or less than two percent
(2%) of the then Aggregate Principal Balance, then the good faith classification
of the Primary Servicer shall govern; provided that, in no event, shall Primary
Servicer's classification govern if such classification would, in the sole
judgment of Master Servicer or Special Servicer (as applicable), conflict with
any provision of the Pooling and Servicing Agreement or result in a default by
Master Servicer or Special Servicer under the Pooling and Servicing Agreement.
f. Processing of Post Closing Request During Dispute. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist but in any event the processing of a Post Closing
Request must be accomplished in a manner consistent and in compliance with the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HQ12
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
1. Asset Files
Original credit file management X
Original collateral file (security) X
Authorized parties list for request for release of collateral from Trustee X X
Establish servicing files criteria X X
Provide access to servicing files and copies of servicing files or of specific docs X
upon request to the Master Servicer
Request delivery of files from Trustee upon request and certification of Primary X
Servicer
------------------------------------------------------------------------------------------------------------------------------------
2. Property Taxes
Preparation and delivery of quarterly tax delinquency reports X
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans with/without escrows X
Notification of advance requirement 3 business days prior to advance being required X
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
------------------------------------------------------------------------------------------------------------------------------------
3. Property Insurance
Preparation and delivery of quarterly insurance tickler reports X
Monitoring of insurance status - Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement qualifications X
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
Recommendation of payment or force placement of insurance with/without escrow X
Notification of advance requirement or force placement of insurance 3 business days X
prior to advance being required
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Category 1 Requests and Deemed Category 1 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
Category 2 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
------------------------------------------------------------------------------------------------------------------------------------
4. UCC Continuation Filings
Preparation and delivery of quarterly UCC tickler report X
Maintain tickler system of refiling the dates on all Loans X
File UCC Continuation Statements X
Pay recording fees X
Monitor tickler system X
------------------------------------------------------------------------------------------------------------------------------------
5. Collection/Deposit/Distribution of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments X
Remittance of available Primary Servicer P&I payments to Master Servicer and B Note X
holders, as applicable (net of Aggregate Servicing Fee and other fees
payable to the Primary Servicer by the B Note holders)
Provide Collection Reports to Master Servicer X
Distribution of P&I payments to the Trustee X
Distribution of Special Servicer compensation X
Approval of Prepayment Premiums X
------------------------------------------------------------------------------------------------------------------------------------
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
------------------------------------------------------------------------------------------------------------------------------------
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone 3 days after delinquent date X
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180, and 90 days prior to X
the related maturity date
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
------------------------------------------------------------------------------------------------------------------------------------
8. Escrows
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income required X
Prepare annual escrow analysis X
------------------------------------------------------------------------------------------------------------------------------------
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Master Servicer X
Approve payoff calculations and telecopy approval to Primary Servicer within five (5) X
Business Days
------------------------------------------------------------------------------------------------------------------------------------
10. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating statements, budgets, rent rolls and
borrower X financial statements, as applicable.
Deliver Operating Statement Analysis Report, CMSA Financial File and NOI
Adjustment X Worksheet in accordance with Section 2.1(c)(viii) of this
Agreement.
Deliver one (1) copy of quarterly and annual operating statements, budgets,
rent X rolls and borrower financial statement, as applicable, within thirty
(30) days of Primary Servicer's receipt
Complete CMSA Loan Setup File for Mortgage Loans X X
Complete CMSA Loan Periodic Update File for Mortgage Loans X
Complete and deliver CMSA Property File for Mortgage Loans X
Complete and deliver quarterly Operating Statement Analysis Report and CMSA
Quarterly Financial File in accordance with Section 2.1(c)(viii) of X X
this Agreement.
Cash account Reconciliations - Copies of monthly bank statements for all deposit, X
escrow and reserve accounts
CMSA Supplemental Reports
Complete Servicer Watch List X
Complete Comparative Financial Status Report X
Delinquent Loan Status Report X
REO Status Report X
Historical Loan Status Report X
Historical Liquidation Report X
CMSA Loan Level Reserve/LOC Report X
------------------------------------------------------------------------------------------------------------------------------------
11. Advancing
Determination of Non-Recoverability X
------------------------------------------------------------------------------------------------------------------------------------
12. Borrower Inquiries/Performing Loans
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
Performing Loans - respond to routine billing questions X
Category 1 Requests and Deemed Category 1 Requests
Assumptions & Due on sale:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of assumption X
Consent to assumption X
Close assumption X
Category 2 Requests
Assumptions & Due on sale:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of assumption X X
Consent to assumption X
Close assumption (directly with Borrower) X
Category 1 Requests and Deemed Category 1 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of additional lien, monetary encumbrance or mezzanine financing X
Consent to additional lien, monetary encumbrance or mezzanine financing X
Close additional lien, monetary encumbrance or mezzanine financing X
Category 2 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of additional lien, monetary encumbrance or mezzanine financing X X
Consent to additional lien, monetary encumbrance or mezzanine financing X
Close additional lien, monetary encumbrance or mezzanine financing X
(directly with Borrower)
Modifications (Non-Money Terms), Waivers, Consents and Extensions up to 60
days (not otherwise provided in this Agreement):
Initial Borrower contact and data gathering X
Underwriting and analysis X
Approval of modification and extensions up to 60 days (Category 1 Requests and X
Deemed Category 1 Requests)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days (Category 2 Request) X
Consent to modification and waivers and other consents (not otherwise provided in X
this Agreement)
Closing Documents and Closing X
Modification (Money Terms): X
Extensions of Maturity Date (more than 60 days): X
Response to request for Discounted Payoffs, Workouts, Restructures, Forbearances and X
Casualties
Condemnation (only with respect to Specially Serviced Mortgage Loans the Special X X X
Servicer will perform such functions)
------------------------------------------------------------------------------------------------------------------------------------
13. Monthly Reporting (Hardcopy & Electronic mail)
Day One Report X
Delinquency and past due reporting on all Loans X
Deliver on April 25, July 25, October 25 and January 25 of each year a
Quarterly Servicing Accounts Reconciliation Certification in the form of X
Exhibit D
------------------------------------------------------------------------------------------------------------------------------------
14. Category 1 Requests and Deemed Category 1 Requests
Release of Collateral
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee upon Primary Servicer request and X
certification
Preparation and recordation of release deeds all Loans (full and partial) X
Category 2 Requests
Release of Collateral
Initial Borrower contact and data gathering X
Underwriting and analysis X
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee X
Preparation and recordation of release deeds all Loans (full and partial) X
------------------------------------------------------------------------------------------------------------------------------------
15. Property Annual Inspections
Conduct site inspection per Pooling and Servicing Agreement requirement X
Provide 3 copies of site inspection reports to the Master Servicer within
30 days of inspection but not later than December 15 of each year X
beginning in 2006
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------------------------------------------
16. Preparation of servicing transfer letters X
------------------------------------------------------------------------------------------------------------------------------------
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Master Servicer by January 31
of each year
------------------------------------------------------------------------------------------------------------------------------------
18. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer X
Form 10-D Information Reports and Primary Servicer Form 10-K Information
Reports at the times and in the manner set forth in Section 5.13(c) of this
Primary Servicing Agreement
------------------------------------------------------------------------------------------------------------------------------------
19. Provide annual statement of compliance at the times and in the manner set X
forth in Section 5.13(c) of this Primary Servicing Agreement
------------------------------------------------------------------------------------------------------------------------------------
20. Provide either (a) a report regarding Primary Servicer's assessment of
compliance X
with servicing criteria and a report by a registered public accounting firm
that attests to and reports on such assessment report or (b) a report of a
firm of independent public accounts based on USAP-compliant examinations,
as the case may be, at the times, in the manner and as specified in Section
5.13(c) of this Primary Servicing Agreement.
------------------------------------------------------------------------------------------------------------------------------------
21. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and in the X
manner set forth in Section 5.13(c)(v) of this Primary Servicing
Agreement
------------------------------------------------------------------------------------------------------------------------------------
22. Compensation
Primary Servicer Fee and other fees payable to the Primary Servicer by the B Note X
holders
Investment earnings on Primary Servicer Collection Account X
Investment earnings on tax & insurance reserves not payable to borrower X
Investment earnings on reserve accounts not payable to borrower X
Late charges to the extent collected from borrower (offsets advance interest per X
Pooling and Servicing Agreement)
------------------------------------------------------------------------------------------------------------------------------------
23. Defeasance
Coordinate, analyze, approve, and process defeasance request X
Consent to defeasance X
Service Defeasance Loans X
Retain all fees associated with Defeasance Loans X
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
ATTENTION: COMMERCIAL MORTGAGE PASS-
THROUGH CERTIFICATES SERIES 2007-HQ12
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
_______________________________________, acting solely in its capacity as
Master Servicer ("Master Servicer"), under the Pooling and Servicing Agreement
dated as of July 1, 2007 (the "Pooling and Servicing Agreement") and a Primary
Servicing Agreement dated as of July 1, 2007 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12, does hereby nominate, constitute and appoint
Xxxxx Fargo Bank, National Association ("WFB"), as Primary Servicer under the
Primary Servicing Agreement ("Primary Servicing Agreement"), as its true and
lawful attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable < > to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by WFB of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto WFB full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that < > shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ______________.
_______________________________________,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement and the Primary Servicing
Agreement
By:_____________________________________
Name:
Title:
D-2
EXHIBIT D
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Xxxxx Fargo Bank, National Association
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12
Pursuant to the Primary Servicing Agreement between
_______________________________________ ("Master Servicer") and Xxxxx Fargo
Bank, National Association ("Primary Servicer") for the transaction referenced
above, I hereby certify with respect to each mortgage loan serviced by Primary
Servicer for Master Servicer for such transaction that within 25 days after the
end of each of the months of [January, February and March][April, May and
June][July, August and September][October, November and December], any and all
deposit accounts, escrow accounts and reserve accounts, and any and all other
collection accounts and servicing accounts, related to such mortgage loan have
been properly reconciled, and the reconciliations have been reviewed and
approved, by Primary Servicer's management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER] Title: Servicing Officer, Xxxxx
Fargo Bank, National Association
Date: [April, July, October, January] 25, [20__]
D-1
EXHIBIT E
FORM OF COVER PAGE FOR REPORT OR CERTIFICATION
COMPLIANCE INFORMATION REPORT
IDENTIFYING INFORMATION FOR THIS REPORT:
Date of Submission: _______
Depositor: ________________________________________________
Trust: ________________________________________________
Pooling and Servicing Agreement: Pooling and Servicing Agreement dated as of _______, ___, among
___________________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________, ___, between
_______________________________________, as master servicer,
and ______________, as Primary Servicer.
Master Servicer: _______________________________________
Primary Servicer: ________________________________________________
Primary Servicer Contact Person: [Name][telephone][facsimile][email address]
THIS REPORT CONTAINS THE FOLLOWING INFORMATION:
Immediate Reporting:
[ ] Form 8- K Reporting Information
Monthly Reporting:
[ ] Form 10-D Reporting Information
Annual Reporting:
[ ] Form 10-K Reporting Information
Annual Compliance:
[ ] Compliance Assessment Report (Item 1122(a)) by Primary Servicer on
Compliance With Servicing Criteria in Item 1122(d) of
Regulation AB
[ ] Attestation Report (Item 1122(b)) by Registered Public Accounting
Firm on Compliance Assessment Report
[ ] Statement of Compliance (Item 1123)
[ ] Xxxxxxxx-Xxxxx Back-Up Certification
THIS REPORT AMENDS PRIOR REPORTING INFORMATION:
[ ] Yes - Date of Submission of Prior Reporting Information:
____/_____/_______
[ ] No
G-1
APPENDIX 1
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO MASTER SERVICER
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed
items to seek the consent of Master Servicer to a defeasance of a Mortgage Loan
or an A/B Mortgage Loan that Primary Servicer is permitted to process under this
Primary Servicing Agreement.
Copy of written notice to Primary Servicer from Mortgagor requesting defeasance
of the applicable Mortgage Loan.
An Executed Certificate substantially in the form attached hereto at Exhibit A.
(i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage Loan,
and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral..
Such other items as are reasonably required by Master Servicer consistent with
the Servicing Standard as long as such requirements may be required of the
related Mortgagor under the related Loan Documents without additional
expense to Primary Servicer or Master Servicer.
Appendix 1
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Xxxxx Fargo Bank,
National Association, as primary servicer (the "Primary Servicer") pursuant to
that Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
_________, ____, between Primary Servicer and Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer") related to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ12.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-------------------------------------------------
Name:
Title:
Exhibit A to Appendix 1
APPENDIX 2
Assignment and Assumption Submission to Special Servicer
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
Executive Summary:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
Page 1 of Appendix 2
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
--------------------------------------------------------------------------------
Purchase price $
Buyer down payment $ (%)
Estimated closing date
1% loan fee split: Primary Servicer 40% - $
_____, Master Serv. 10% - $
LNR Partners, Inc., Special Serv. 50% - $
Most recent appraised value according to appraisal $
in Primary Servicer's possession
Loan-to-value as if initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
--------------------------------------------------------------------------------
Financial Condition of Proposed Mortgagor/Guarantor:
2. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
3. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
4. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its
assets)
b. Related debt
5. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
6. Explain results of credit checks, legal searches and banking credit
references (two required)
2 of Appendix 2
7. If Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
8. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
New Environmental and Engineering Developments (if any) and Status of Issues
identified in Original Reports or Loan Documents as needing Remediation: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Escrow Status:
1. Explain status of all reserves
Property Management Summary:
1. Who is proposed property management firm
2. Background and Experience
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given most
weight from most recent appraisal in Primary Servicer's possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
3 of Appendix 2
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
4 of Appendix 2
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
< >
By: _______________________________________
Title: ____________________________________
Date: _____________________________________
Consent to Assignment & Assumption is given:
LNR PARTNERS, INC., acting solely in its capacity as
Special Servicer
By: _______________________________________
Title: ____________________________________
Date: _____________________________________
5 of Appendix 2
Schedule of Exhibits to Assumption Submission
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and
operating statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
6 of Appendix 2
APPENDIX 3
Additional Lien, Monetary Encumbrance or Mezzanine Financing Submission to
Special Servicer
Mortgagor:
Master Servicer Loan #:
Primary Servicer Loan #:
Collateral Type: (Retail, Industrial, Apartments, Office, etc.)
Address of Property:
Asset Status As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
Executive Summary:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine
financing contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
Page 1 of Appendix 3
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
2 of Appendix 3
The transaction terms and property characteristics are summarized as follows:
--------------------------------------------------------------------------------
Estimated closing date for financing:
Administrative fee to Primary Servicer $
Additional Fees, if any $
(50%: Special Servicer; 10%: Master Servicer; 40%:
Primary Servicer
Most recent appraised value according to appraisal $
in Primary Servicer's possession
Loan-to-value as of initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
--------------------------------------------------------------------------------
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
Escrow Status:
1. Explain status of all Reserves
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given most
weight from most recent appraisal in Primary Servicer's possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and economic
influences that may affect the operational performance of the property.
3 of Appendix 3
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
< >
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
LNR PARTNERS, INC., acting solely in its capacity as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
4 of Appendix 3
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
1. Most recent Income & Expense Statement for property and operating
statement review
2. Original Asset Summary for Mortgaged Property
3. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement
in substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be
executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
5 of Appendix 3
APPENDIX 4
LEASE SUMMARY SUBMISSION PACKAGE
Loan # ________________________
--------------------------------------------------------------------------------
Borrower Name: _________________________________________________________________
Property Name: _________________________________________________________________
Total Property NRSF (Per Rent Roll): ___________________________________________
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N) _____________________________________
--------------------------------------------------------------------------------
LEASE INFORMATION
--------------------------------------------------------------------------------
1. Parties to Lease
a. Landlord:________________________________________________________________
b. Rent Commencement Date: _________________________________________________
c. Tenant:__________________________________________________________________
d. Parent Company (if applicable):__________________________________________
e. Subtenant and/or Assignee (if applicable):_______________________________
F. IF YES, IS ORIGINAL TENANT LIABLE? (Y/N)_________________________________
g. Guarantor(s):____________________________________________________________
h. Tenant financial statements attached:____________________________________
i. If
not, why:___________________________________________________________________
--------------------------------------------------------------------------------
2. Basic Lease Terms
a. Lease Commencement Date: ________________________________________________
b. Rent Commencement Date: _________________________________________________
c. Lease Expiration: _______________________________________________________
d. Unexercised Extension Options (Y/N): ____________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs): ______________________________
-Terms: _______________________________________________________
e. Lease Type (Credit/Form): _______________________________________________
f. Use of Premises: ________________________________________________________
3. Lease Economic Terms
a. Current Base Annual Rent $ ______________________________________________
b. Scheduled Increases Date/New Annual: ____________________________________
c. Increases/Option Periods (Date/New Annual Rent/PSF): ____________________
d. Percentage Rent Clause? Breakpoint: _____________________________________
e. TI Amortization Component: ______________________________________________
f. Rent Concessions (enter month): _________________________________________
--------------------------------------------------------------------------------
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes____________________________________________________________________
b. Insurance________________________________________________________________
c. Management Fees__________________________________________________________
d. Utilities________________________________________________________________
e. Non-Structural Maintanance/Repair________________________________________
f. Contract Services _______________________________________________________
g. Administrative (% of CAM) _______________________________________________
h. Professional Fees________________________________________________________
i. CAM______________________________________________________________________
--------------------------------------------------------------------------------
5. Options
a. Purchase Option (Note Date/Terms): ______________________________________
b. Right of First Refusal (Note Date/Terms/Reference DOT):__________________
--------------------------------------------------------------------------------
6. Other Information (Only note those that apply):
a. Expense Stop Formula_____________________________________________________
b. Base Year________________________________________________________________
c. Security/Other Deposits__________________________________________________
d. Tenant Improvement Allowance_____________________________________________
-Above Standard TI's?________________________________________________
--------------------------------------------------------------------------------
7. Compliance
a. Lease meets all requirements of the Loan Documents. (Y/N)
If no, specify________________________________________________________
b. Landlord has complied with all leasing requirements in the Loan
Documents. (Y/N) If no, specify__________________________________________
--------------------------------------------------------------------------------
8. Recommendation Request for Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Master Servicer to
the foregoing Lease Approval.
By: ___________________________________
Title: ________________________________
Date: _________________________________
Consent to Lease Approval is given:
_______________________________________, acting solely in its capacity as Master
Servicer
By: _____________________________________
Title:____________________________________
Date: ____________________________________
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Loan Documents
EXHIBIT BB
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
-----------------------------------------------------------------------------------------------------------------------------------
Information Format Frequency
-----------------------------------------------------------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
-----------------------------------------------------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
-----------------------------------------------------------------------------------------------------------------------------------
Other Financials as required by loan documents Actual PDF/TIF As received
-----------------------------------------------------------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
-----------------------------------------------------------------------------------------------------------------------------------
Payments Received After Determination Date Report (1) Monthly Excel Master Servicer Remittance Date
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month
-----------------------------------------------------------------------------------------------------------------------------------
Interest on Advance Reconciliation Monthly Excel Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
CMSA Financial File 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 (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
-----------------------------------------------------------------------------------------------------------------------------------
Footnotes:
1) On the Master Servicer Remittance Date following each Determination
Date, a list of all Mortgage Loans which are delinquent as to the
applicable Collection Period on that Master Servicer Remittance
Date. This list should represent all delinquent Mortgage Loans that
required a P&I Advance to be made.
2) On the last day of the month (30th), for all delinquencies reported
in #1 above, a list of all Mortgage Loans which remain delinquent
for such Collection Period (along with the number of days
delinquent), accompanied with any reason, in the Master Servicer's
opinion, for the continued delinquency of such Mortgage Loans, along
with an explanation of the Master Servicer's attempts to cure.
3) LNR Partners, Inc. requests that the above information be organized
in ascending Prospectus Loan I.D. order and forwarded on each of the
above listed dates via E-Mail to the following address, or all
reports and data files shall be available via the Master Servicer's
or the Trustee's Website.
EXHIBIT CC
Form of Performance Certification
CERTIFICATION
Re: XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-HQ12, issued pursuant to the Pooling and Servicing
Agreement dated as of July 1, 2007 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer"), LNR Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee and custodian
(the "Trustee") and Xxxxx Fargo Bank, National Association, as paying agent and
certificate registrar (the "Paying Agent").
Capitalized terms used but not defined herein have the meanings set forth
in the Pooling and Servicing Agreement.
__________________________________
I, [identity of certifying individual], the senior officer in charge of
securitization of the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12 (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 the 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 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 servicer(s) [has/have]
fulfilled [its/their] obligations under the Pooling and Servicing Agreement or
the applicable sub-servicing agreement or primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an
exhibit to 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;
o Wells Fargo Bank, National Association, as Master Servicer;
o LNR Partners, Inc., as Special Servicer;
o Wells Fargo Bank, National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent;
o LaSalle Bank National Association, as Trustee; and Custodian
o [names of sub-servicers]
Date: [___]
By _________________________________
Name:
Title:
EXHIBIT CC-1
Reporting Servicer Form of Performance Certification
CERTIFICATION
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-HQ12, issued pursuant to the Pooling and Servicing
Agreement dated as of July 1, 2007 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer"), LNR Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee and custodian
and Xxxxx Fargo Bank, National Association, as paying agent, certificate
registrar and authenticating agent (the "Paying Agent") [./; and]
[the Subservicing Agreement, dated as of _____ (the "Subservicing
Agreement") between [identify parties].
Capitalized terms used but not defined herein have the meanings set forth
in the Subservicing Agreement or, if not defined in the Subservicing Agreement,
then the meanings set forth in the Pooling and Servicing Agreement.
____________________________________
I, [identity of certifying individual], hereby certify on behalf of the
[Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicers]to the Depositor and its officers, directors and
Affiliates (collectively, the "Certification Parties") as follows, with the
knowledge and intent that the Certification Parties will rely on this
Certification in connection with the certification concerning the Trust to be
signed by an officer of the Depositor and submitted to the Securities and
Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the report of information provided by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating to the Trust
and all reports of information by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] for inclusion in the Asset-Backed
Issuer Distribution Reports on Form 10-D ("Form 10-D") relating to the Trust
(such reports by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer], collectively, the "[Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports");
2. Based on my knowledge, the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, taken as a whole,
do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the [Master Servicer/Special
Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports
under the provisions of the [Pooling and Servicing/Subservicing] Agreement for
the calendar year preceding the date of the Form 10-K is included in the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports;
4. Based on my knowledge and the compliance review conducted in
preparing the [Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicer]'s compliance statement under the [Pooling and
Servicing/Subservicing] Agreement in connection with Item 1123 of Regulation AB,
and except as disclosed in the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] has
fulfilled its obligations under the [Pooling and Servicing/Subservicing]
Agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with the relevant Servicing Criteria for asset-backed
securities required under the [Pooling and Servicing/Subservicing] Agreement to
be delivered by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] included in the 10-K filing to which
this certification relates in connection with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18, disclose material instances of
noncompliance described in such reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of master servicer; name of other subservicer].
This Certification is being signed by me as an officer of the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
responsible for reviewing the activities performed by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
under the [Pooling and Servicing/Subservicing] Agreement.
Date: [___]
By _________________________________
Name:
Title:
EXHIBIT DD
FORM OF NOTICE WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
July 31, 2007
[INSERT ADDRESSES OF RELATED TRUSTEE,CERTIFICATE REGISTRAR, PAYING AGENT,
MASTER SERVICER AND SPECIAL SERVICER]
[Holders of the [Name of Non-Serviced Companion Loans]]
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 - [Name of Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ12, Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ12 (the "Trust Fund") is the [_________] Noteholder,
as such term is defined under the [description of intercreditor agreement] (the
"Intercreditor Agreement"). In connection with the deposit of the [___] Note of
the [Non-Serviced Mortgage Loan] into the Xxxxxx Xxxxxxx Capital I Trust
2007-HQ12 established by Xxxxxx Xxxxxxx Capital I Inc., the contact information
for each of the parties to the related pooling and servicing agreement are set
forth on Schedule I attached hereto.
The [Non-Serviced Mortgage Loan] is being serviced pursuant to the terms of that
certain Pooling and Sevicing agreement dated as of [________], among
[_______________], as may be from time to time amended, supplemented or modified
(the "[______________] Pooling Agreement"). Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent for the registered
holders of the Trust Fund (the "Certificate Registrar"), hereby directs the
applicable parties to the [______________] Pooling Agreement as follows:
(i) Remit all amounts payable in accordance with the Intercreditor Agreement and
the [______________] Pooling Agreement due to the holder of the [___] Note of
the [Non-Serviced Mortgage Loan] on such days as specified in the
[______________] Pooling Agreement to Xxxxx Fargo Bank, National Association, as
master servicer of the Trust Fund (the "Master Servicer"), and to the collection
account set forth on Schedule II attached hereto; and
(ii) Forward, deliver or otherwise make available, as the case may be, all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to the holder of the [___]
Note of the [Non-Serviced Mortgage Loan] in accordance with the Intercreditor
Agreement and the [______________] Pooling Agreement to the Certificate
Registrar and the Master Servicer.
Thank you for your attention to this matter.
Xxxxx Fargo Bank, National Association
as Certificate Registrar and Paying Agent for the Holders of the Xxxxxx Xxxxxxx
Capital I Trust 2007-HQ12, Commercial Mortgage Pass-Through Certificates,
Series2007-HQ12
By:_______________________________________
Name:_____________________________________
Title:____________________________________
SCHEDULE I
MORTGAGE LOAN SCHEDULE
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN MORTGAGE PROPERTY CUT-OFF DATE
LOAN NO. GROUP LOAN SELLER(1) NAME(2) STREET ADDRESS BALANCE(6) NOTE DATE
--------------------------------------------------------------------------------------------------------------------------
1 1 MSMCH Columbia 000 Xxxxx Xxxxxx & $380,000,000 04/10/2007
Center 000 Xxxxxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
Parkoff Portfolio $170,000,000 03/30/2007
Roll-Up
2 1 XXXXX Xxxxxxx Portfolio - 00 Xxxx 00xx Xxxxxx $50,394,375 03/30/2007
00 Xxxx 00xx Xx (I)
2 1 XXXXX Xxxxxxx Xxxxxxxxx - 00 Xxxx 00xx Xxxxxx $46,497,210 03/30/2007
00 Xxxx 00xx Xx (I)
2 1 XXXXX Xxxxxxx Xxxxxxxxx - 00 Xxxx Xxx Xxxxxx $29,298,905 03/30/2007
00 Xxxx Xxx Xxx (I)
2 1 XXXXX Xxxxxxx Portfolio - 000 Xxxx 00xx Xxxxxx $18,074,783 03/30/2007
000 Xxxx 00xx Xx (I)
2 1 XXXXX Xxxxxxx Portfolio - 000 Xxxx 00xx Xxxxxx $15,588,660 03/30/2007
000 Xxxx 00xx Xx (I)
2 1 XXXXX Xxxxxxx Portfolio - 3 0 Xxxx 00xx Xxxxxx $10,146,068 03/30/2007
East 66th St (I)
--------------------------------------------------------------------------------------------------------------------------
Beacon Seattle & DC $161,000,000 04/10/2007
Portfolio Roll-Up
3 1 MSMCH Market Square (II) 701 & 801 $24,876,667 00/00/0000
Xxxxxxxxxxxx Xxxxxx,
XX
3 1 XXXXX Xxxx & Xxxxxx (II) 0000 X Xxxxx Xxxxxx $19,703,825 04/10/2007
& 0000 Xxxxxxx Xxxxx
3 1 XXXXX Xxxxx Fargo Center 000 Xxxxx Xxxxxx $18,528,179 04/10/2007
(II)
3 1 MSMCH Lafayette Center (II) 0000 00xx Xxxxxx XX; $16,745,900 04/10/2007
0000 00xx Xxxxxx,
XX; 0000 00xx
Xxxxxx, XX
3 1 MSMCH Xxxx Xxxxx Complex 8251 Greensboro $14,121,858 04/10/2007
(II) Drive; 0000
Xxxxxxxxxx Xxxxx;
0000 Xxxxxxxxxx Xxxxx
3 1 MSMCH Key Center (II) 000 000xx Xxxxxx XX $9,438,085 04/10/2007
3 1 MSMCH Sunset North (II) 3060 - 3180 139th $8,770,318 00/00/0000
Xxxxxx XX
0 0 XXXXX Xxxx Xxxxxx Bellevue 000 000xx Xxxxxx XX $8,706,833 04/10/2007
(II)
3 1 MSMCH Plaza Center (II) 10800 - 10900 NE 8th $7,138,522 04/10/2007
Street
3 1 MSMCH 1616 North Fort Xxxx 1616 North Fort Xxxx $6,583,617 04/10/2007
Drive (II) Drive
3 1 MSMCH American Center (II) 8300 & 8330 Xxxxx $4,984,739 04/10/2007
Boulevard
3 1 MSMCH Xxxxxxxx Xxxxxx Xxxx 00000 XX 00xx Xxxxx $4,354,592 04/10/2007
(II)
3 1 MSMCH Liberty Place (II) 000 0xx Xxxxxx, XX $4,138,273 04/10/2007
3 1 XXXXX Xxxxxxx Executive 0000 000xx Xxxxx XX $4,020,709 04/10/2007
Center (II) & 0000 000xx Xxxxx
SE, 00000 XX
Xxxxxxxx Xxx, 0000
000xx Xxxxx XX &
0000 000xx Xxxxx XX
--------------------------------------------------------------------------------------------------------
ORIGINAL ADMINISTRATIVE
MORTGAGE TERM TO COST MASTER FEE PRIMARY SERVICING
LOAN NO. MATURITY MORTGAGE RATE RATE(27) (BPS) FEE (BPS) FEES (BPS)
--------------------------------------------------------------------------------------------------------
1 60 5.620% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
120 5.050%
2 120 5.050% 2.115 1.000 1.000 0.000
2 120 5.050% 2.115 1.000 1.000 0.000
2 120 5.050% 2.115 1.000 1.000 0.000
2 120 5.050% 2.115 1.000 1.000 0.000
2 120 5.050% 2.115 1.000 1.000 0.000
2 120 5.050% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
60 5.797%
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN MORTGAGE PROPERTY CUT-OFF DATE
LOAN NO. GROUP LOAN SELLER(1) NAME(2) STREET ADDRESS BALANCE(6) NOTE DATE
--------------------------------------------------------------------------------------------------------------------------
3 1 MSMCH 11111 Xxxxxx Xxxxx 00000 Xxxxxx Xxxxx $3,536,343 00/00/0000
Xxxx (XX) Xxxx
3 1 MSMCH Army and Navy 0000 X Xxxxxx, XX $2,986,141 04/10/2007
Building (II)
3 1 MSMCH Plaza East (II) 00000 XX 0xx Xxxxxx $2,365,399 04/10/2007
3 1 MSMCH Xxxxxx Xxxx Xxxxxx 00000 Xxxxxxx Xxxxx $0 04/10/2007
(II)
3 1 XXXXX Xxxxxxxxxx Mutual 0000 Xxxxx Xxxxxx $0 04/10/2007
Tower (II)
3 1 MSMCH 1300 North 1300 North 17th $0 04/10/2007
Seventeenth Street Street
(II)
--------------------------------------------------------------------------------------------------------------------------
RREEF Portfolio $124,500,000 12/08/2006
Roll-Up
4 2 MSMCH RREEF Portfolio - 000 Xxxxxxx Xxxxx $29,758,537 12/08/2006
Xxxxxx'x Crossing
(III)
4 2 MSMCH RREEF Portfolio - 00000 Xxxxxx Xxxxxx $21,256,098 12/08/2006
Lionsgate (III)
4 2 MSMCH XXXXX Xxxxxxxxx - 00000 Xxxxx Xxxxx $20,345,122 12/08/2006
University Heights Road
(III)
4 2 MSMCH XXXXX Xxxxxxxxx - 00000 Xxxxxx Xxxx $18,371,341 12/08/2006
Carlyle Station (III)
4 2 MSMCH RREEF Portfolio - 0000 Xxxxxxxxx Xxxxx $14,575,610 12/08/2006
XxXxxx Farms (III)
4 2 MSMCH RREEF Portfolio - Fox 2 Observation Court $8,654,268 12/08/2006
Run (III)
4 2 MSMCH RREEF Portfolio - 00 Xxxxxxx Xxxx Xxxx $6,680,488 12/08/2006
Xxxxxxx Station (III)
4 2 MSMCH RREEF Portfolio - The 00 Xxxxxxxx Xxx XX $4,858,537 12/08/2006
Xxxx (III)
--------------------------------------------------------------------------------------------------------------------------
5 1 XXXXX Xxxxxxx Entrance 800-806 South $102,500,000 00/00/0000
Xxxxxxx Xxxx
--------------------------------------------------------------------------------------------------------------------------
6 1 MSMCH Four Seasons San 000 Xxxxxx Xxxxxx $90,000,000 06/05/2007
Francisco
--------------------------------------------------------------------------------------------------------------------------
7 1 MSMCH 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx $65,000,000 12/18/2006
--------------------------------------------------------------------------------------------------------------------------
8 1 MSMCH Deptford Mall 1750 Deptford Center $60,000,000 05/23/2007
Road
--------------------------------------------------------------------------------------------------------------------------
9 1 MSMCH Xxxx Hotel Land Loan 00 X. 00xx Xxxxxx & $58,000,000 10/31/2006
0000 Xxxxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
10 2 MSMCH AMLI at Seven Bridges 6466 Double Eagle $44,782,720 12/19/2003
Drive
--------------------------------------------------------------------------------------------------------------------------
11 1 MSMCH Xxxxxxx Xxxxxx Xxxxx 0000 Xxxxxx Xxxxx $38,000,000 02/12/2007
Hills
--------------------------------------------------------------------------------------------------------------------------
12 2 MSMCH Xxxxx Xxxx Xxxxxxxxxx 00000 Murrieta Hot $35,000,000 00/00/0000
Xxxxxxx Xxxx
--------------------------------------------------------------------------------------------------------------------------
13 1 MSMCH Timberland Buildings 5435 Corporate $33,235,919 05/30/2007
Drive, 0000
Xxxxxxxxx Xxxxx,
0000 Xxxx Xxxx Xxxx
Xxxx
--------------------------------------------------------------------------------------------------------------------------
14 1 MSMCH Somerset Crossing 7441, 7581, 7641 $27,200,000 03/28/2007
Somerset Crossing
Drive
--------------------------------------------------------------------------------------------------------------------------
15 1 MSMCH Ramada Plaza Beach 1500 Miracle Strip $26,250,000 00/00/0000
Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
16 1 MSMCH Xxxxxx Xxxxxxxx Xxxxxx 00 XX 00xx Xxxxx; $23,800,000 05/15/2007
0000-0000 X Xxxxxxxx
Xxxxxx; 000-000 XX
Xxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
17 1 MSMCH Holiday Inn 0000 Xxxxxxx Xxxxxxx $22,977,234 06/01/2007
Oceanfront &
Conference Center
--------------------------------------------------------------------------------------------------------------------------
18 1 MSMCH The Xxxxx 000 Xxxxxxxxx Xxxxxx $21,000,000 04/26/2007
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
ORIGINAL ADMINISTRATIVE
MORTGAGE TERM TO COST MASTER FEE PRIMARY SERVICING
LOAN NO. MATURITY MORTGAGE RATE RATE(27) (BPS) FEE (BPS) FEES (BPS)
--------------------------------------------------------------------------------------------------------
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
3 60 5.797% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
60 5.470%
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
4 60 5.610% 2.115 1.000 1.000 0.000
4 60 5.470% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
5 60 5.660% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
6 120 5.530% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
7 84 5.160% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
8 67 5.290% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
9 126 5.340% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
10 84 7.250% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
11 120 5.740% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
12 120 5.840% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
13 99 6.400% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
14 120 5.440% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
15 60 6.290% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
16 120 5.720% 4.615 1.000 1.000 2.500
--------------------------------------------------------------------------------------------------------
17 120 6.030% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
18 60 5.960% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN MORTGAGE PROPERTY CUT-OFF DATE
LOAN NO. GROUP LOAN SELLER(1) NAME(2) STREET ADDRESS BALANCE(6) NOTE DATE
--------------------------------------------------------------------------------------------------------------------------
19 1 MSMCH 00-00 00xx Xxxxxx 00-00 00xx Xxxxxx $20,000,000 02/28/2007
--------------------------------------------------------------------------------------------------------------------------
20 1 MSMCH Uptown Plaza 0000 XxXxxxxx Xxxxxx $19,900,000 03/27/2007
--------------------------------------------------------------------------------------------------------------------------
21 1 MSMCH Plaistow Commons 00-00 Xxxxxxxx Xxxx $19,900,000 03/09/2007
--------------------------------------------------------------------------------------------------------------------------
22 2 MSMCH Sun Prairie 5703 / 5901 Vista $16,965,458 05/01/2007
Apartments I & II Drive
--------------------------------------------------------------------------------------------------------------------------
23 2 XXXXX Xxxxxxxx House 1110 Commonwealth $15,600,000 11/02/2006
Avenue
--------------------------------------------------------------------------------------------------------------------------
24 2 MSMCH Walnut Crossing 0000 Xxxxxxx Xxxxx $15,460,000 05/03/2007
--------------------------------------------------------------------------------------------------------------------------
25 2 XXXXX Xxxxx Mansion 1500 Noble Mansion $13,500,000 04/26/2007
--------------------------------------------------------------------------------------------------------------------------
26 1 MSMCH 1200 North Main Office 0000 X. Xxxx Xxxxxx $13,300,000 01/24/2007
--------------------------------------------------------------------------------------------------------------------------
27 1 MSMCH Airport Plaza 4900 & 4910 Airport $12,900,000 00/00/0000
Xxxxx Xxxxx
--------------------------------------------------------------------------------------------------------------------------
28 1 XXXXX Xxxxxx Center 0000 XX 00xx Xxxxxx $12,000,000 02/27/2007
& 0000 XX 00xx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
29 1 MSMCH Waxahachie Retail 000 Xxxxx Xxxxxxx 00 $12,000,000 03/30/2007
Center
--------------------------------------------------------------------------------------------------------------------------
30 1 MSMCH Mifflin County Commons 325 West Freedom $11,551,391 03/01/2007
Avenue
--------------------------------------------------------------------------------------------------------------------------
31 1 MSMCH 00-00 00xx Xxxxxx 00-00 00xx Xxxxxx $11,209,473 02/28/2007
--------------------------------------------------------------------------------------------------------------------------
32 2 MSMCH Orange Xxxx Apartments 000 Xxxxxx Xxxxxx $10,500,000 02/20/2007
--------------------------------------------------------------------------------------------------------------------------
33 2 MSMCH Eola Heights 0000 Xxxxx Xxxx XX $10,400,000 12/06/2006
Apartments
--------------------------------------------------------------------------------------------------------------------------
34 1 XXXXX Xxxxxxxx Shopping 000 Xxx Xxxx Xxxxx $9,000,000 04/27/2007
Center Road
--------------------------------------------------------------------------------------------------------------------------
Lakeview I & II $9,000,000 03/30/2007
Portfolio Roll-Up
35 2 MSMCH Lakeview I (A) 920-1050 X. Xxxxxxxx $4,600,000 03/30/2007
Way
36 2 MSMCH Lakeview II (A) 940-1070 X. Xxxxxxxx $4,400,000 03/30/2007
Way
--------------------------------------------------------------------------------------------------------------------------
37 2 XXXXX Xxxxxxxx Landing 000 Xxxxxxxx Xxxx $8,700,000 03/30/2007
Apartments
--------------------------------------------------------------------------------------------------------------------------
38 2 MSMCH University of 0000 Xxxxxx Xxxxxx; $8,625,000 03/28/2007
Tennessee Student 0000-0000 Xxxxxx
Xxxxxxx Xxxxxx; 0000 Xxxxxx
Xxxxxx; 0000
Xxxxxxxx Xxxxxx;
0000 Xxxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
39 2 XXXXX Xxxxxx Village 00000 Xxxxxxxx Xxxx $8,500,000 02/15/2007
Apartments
--------------------------------------------------------------------------------------------------------------------------
40 1 XXXXX Xxxxxx Building 6200 Xxxxxxx Creek $8,500,000 04/02/2007
Parkway
--------------------------------------------------------------------------------------------------------------------------
41 2 MSMCH The Xxxxxx Xxxxxxxxxx 000-000 Xxxxx Xxxx $7,850,000 04/16/2007
--------------------------------------------------------------------------------------------------------------------------
42 1 MSMCH Xxxxx Xxxxxxx Xxxxxx 000 Xxx Xxxx $7,710,396 04/30/2007
Boulevard
--------------------------------------------------------------------------------------------------------------------------
43 1 MSMCH Comfort Inn Airport & 9600 National Bridge $6,482,283 04/17/2007
Conference Center Road
--------------------------------------------------------------------------------------------------------------------------
44 1 MSMCH Waterford Shopping 000 Xxxxxx Xxxx Xxxx $6,363,862 05/08/2007
Plaza
--------------------------------------------------------------------------------------------------------------------------
45 1 XXXXX Xxxxxxx Xxxx 0 - 0 Xxxxxxx Xxxx $6,300,000 00/00/0000
Xxxxxxxxxxx Xxxx
--------------------------------------------------------------------------------------------------------------------------
46 1 MSMCH Shops at Xxxxxxxx Park 4655 XX Xxxxxxxx $6,300,000 10/16/2006
Drive
Florida Retail/Office $6,200,000 04/30/2007
Portfolio Roll-Up
--------------------------------------------------------------------------------------------------------------------------
47 1 MSMCH Florida Retail/Office 00000 X.X. Xxxxxxx 00 $4,300,000 04/30/2007
Portfolio - Ridge
Centre Shoppes (B)
48 1 MSMCH Florida Retail/Office 00000 00xx Xxxxxx N. $1,900,000 04/30/2007
Portfolio - 00xx
Xxxxxx Professional
Center (B)
--------------------------------------------------------------------------------------------------------------------------
49 1 MSMCH Food World Gardendale 0000 Xxxxxxx Xxxxxxx $6,186,090 06/30/2005
--------------------------------------------------------------------------------------------------------
ORIGINAL ADMINISTRATIVE
MORTGAGE TERM TO COST MASTER FEE PRIMARY SERVICING
LOAN NO. MATURITY MORTGAGE RATE RATE(27) (BPS) FEE (BPS) FEES (BPS)
--------------------------------------------------------------------------------------------------------
19 120 6.205% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
20 120 5.635% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
21 120 5.750% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
22 120 5.520% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
23 132 5.910% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
24 120 5.630% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
25 60 6.560% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
26 60 5.780% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
27 96 5.950% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
28 120 5.620% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
29 120 5.660% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
30 120 5.990% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
31 120 6.090% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
32 120 6.010% 4.115 1.000 1.000 2.000
--------------------------------------------------------------------------------------------------------
33 120 6.130% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
34 120 5.630% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
120 5.630%
35 120 5.630% 4.115 1.000 1.000 2.000
36 120 5.630% 4.115 1.000 1.000 2.000
--------------------------------------------------------------------------------------------------------
37 84 5.680% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
38 120 5.830% 12.115 1.000 1.000 10.000
--------------------------------------------------------------------------------------------------------
39 120 5.810% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
40 126 5.600% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
41 120 5.350% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
42 120 5.850% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
43 120 6.000% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
44 180 6.170% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
45 120 5.730% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
46 132 6.200% 2.115 1.000 1.000 0.000
120 5.610%
--------------------------------------------------------------------------------------------------------
47 120 5.610% 2.115 1.000 1.000 0.000
48 120 5.660% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
49 120 5.280% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN MORTGAGE PROPERTY CUT-OFF DATE
LOAN NO. GROUP LOAN SELLER(1) NAME(2) STREET ADDRESS BALANCE(6) NOTE DATE
--------------------------------------------------------------------------------------------------------------------------
50 1 MSMCH 7676 Xxx Xxxxxxxxx 0000 Xxx Xxxxxxxxx $5,825,000 00/00/0000
Xxxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
51 1 MSMCH 00000 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx $5,600,000 03/15/2007
Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
52 1 MSMCH Uptown Apartments 2362-2368 W. $5,200,000 05/15/2007
Xxxxxxxx; 0000 X.
Xxxxxxxx; 0000 X.
Xxxxxxxx
--------------------------------------------------------------------------------------------------------------------------
53 1 MSMCH Caballo Industrial 0000 Xxxxxxxx Xxxxxx $5,000,000 01/22/2007
--------------------------------------------------------------------------------------------------------------------------
54 2 MSMCH Surrey Ridge II 3000-3145 Beauford; $4,985,003 03/22/2007
688-700 Paso Fino;
0000-0000 Xxxxxx
Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------
55 1 MSMCH Briarwest Shopping 6415 San Xxxxxx $4,868,321 12/21/2006
Center
--------------------------------------------------------------------------------------------------------------------------
56 2 MSMCH College Park 3380 North Xxxx $4,650,000 00/00/0000
Xxxxxxxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
New Horizons $4,590,653 04/09/2007
Portfolio Xxxx-Xx
00 0 MSMCH New Horizons - 1008 South 48th $2,369,370 00/00/0000
Xxxxxxx Xxxxxxxxxx Xxxxxx
(IV)
57 2 MSMCH New Horizons - Osage 0000-00 Xxxxx Xxxxxx $1,258,727 04/09/2007
Ave Apartments (IV)
57 2 MSMCH New Horizons - 0000 Xxxxxxx Xxxxxx $962,556 04/09/2007
Raleigh Apartments
(IV)
--------------------------------------------------------------------------------------------------------------------------
58 1 XXXXX Xxxx Commons - Ft. 000 Xxxx Xxxxxxx $4,300,000 05/22/2007
Xxxxxx Beach, FL North
--------------------------------------------------------------------------------------------------------------------------
59 2 MSMCH Parklynn Xxxxxxxxxx 0 Xxxx Xxxx $4,150,000 02/01/2007
Bronx $4,072,000 04/30/2007
MultiIfamily/Retail
Portfolio Roll-Up
--------------------------------------------------------------------------------------------------------------------------
60 1 MSMCH Bronx 0000 Xxxxxxxxx Xxxxxx $2,300,000 04/30/2007
Multifamily/Retail
Portfolio - Valentine
Ave (C)
61 1 MSMCH Bronx 0000 Xxxxxxx Xxxxxx $1,772,000 04/30/2007
Multifamily/Retail
Portfolio - Xxxxxxx
Ave (C)
--------------------------------------------------------------------------------------------------------------------------
62 1 MSMCH Food World Gadsden 3100 East Xxxxxxx $4,023,707 06/30/2005
Xxxxxxxxx
00 0 XXXXX Xxxxx Xxxxx 0000 Xxxxxx Xxxx 114 $3,992,252 04/23/2007
64 1 XXXXX Xxxxxxx Commons 0000 X Xxxxxxx Xxxx $3,985,396 02/02/2007
--------------------------------------------------------------------------------------------------------------------------
65 1 MSMCH Walgreens - 000 X 00xx Xxxxxx $3,972,800 05/25/2007
Washington, NC
--------------------------------------------------------------------------------------------------------------------------
66 1 XXXXX Xxxxxxx Commons 0000 Xxxxxxx Xxxxxx $3,900,000 03/01/2007
--------------------------------------------------------------------------------------------------------------------------
67 1 XXXXX Xxxxxxx - Naperville 0000 Xxxxx Xxxxx 00 $3,589,021 03/26/2007
--------------------------------------------------------------------------------------------------------------------------
68 2 MSMCH Leesburg Lakeshore MHP 0000 Xxx Xxxxxx $3,500,000 04/05/2007
--------------------------------------------------------------------------------------------------------------------------
69 1 XXXXX Xxxxxxx Inn - 3130 E Xxxxxx $3,490,360 04/04/2007
Greeneville, TN Xxxxxxx Highway
--------------------------------------------------------------------------------------------------------------------------
70 1 MSMCH Overland Retail Plaza 0000 X. Xxxxxxxx Xxxx $3,475,000 02/28/2007
--------------------------------------------------------------------------------------------------------------------------
71 1 MSMCH 00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx $3,382,989 01/31/2007
--------------------------------------------------------------------------------------------------------------------------
72 1 MSMCH Sycamore Terrace 316-320 Sycamore $3,350,000 01/02/2007
Shopping Center Avenue
--------------------------------------------------------------------------------------------------------------------------
73 1 MSMCH The Premier Building 0000 X. Xxxxxxxx Xxxx $3,325,000 02/21/2007
--------------------------------------------------------------------------------------------------------------------------
74 1 MSMCH Xxxxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxxx $3,300,000 01/24/2007
Drive
--------------------------------------------------------------------------------------------------------------------------
75 2 MSMCH Xxxxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxx $3,300,000 03/30/2007
--------------------------------------------------------------------------------------------------------------------------
76 1 MSMCH CVS - Monaca 850 Pennsylvania $3,300,000 04/16/2007
Avenue
--------------------------------------------------------------------------------------------------------
ORIGINAL ADMINISTRATIVE
MORTGAGE TERM TO COST MASTER FEE PRIMARY SERVICING
LOAN NO. MATURITY MORTGAGE RATE RATE(27) (BPS) FEE (BPS) FEES (BPS)
--------------------------------------------------------------------------------------------------------
50 120 5.520% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
51 120 5.530% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
52 60 5.870% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
53 120 5.620% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
54 120 5.730% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
55 120 5.520% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
56 120 5.850% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
120 5.520%
57 120 5.520% 2.115 1.000 1.000 0.000
57 120 5.520% 2.115 1.000 1.000 0.000
57 120 5.520% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
58 120 5.540% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
59 120 5.490% 2.115 1.000 1.000 0.000
120 5.700%
--------------------------------------------------------------------------------------------------------
60 120 5.700% 2.115 1.000 1.000 0.000
61 120 5.700% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
62 120 5.280% 2.115 1.000 1.000 0.000
63 120 5.740% 12.115 1.000 1.000 10.000
64 120 6.030% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
65 120 5.910% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
66 120 5.730% 12.115 1.000 1.000 10.000
--------------------------------------------------------------------------------------------------------
67 120 5.650% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
68 60 5.830% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
69 120 5.940% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
70 120 5.720% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
71 120 6.030% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
72 120 5.880% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
73 120 5.610% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
74 120 5.700% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
75 60 5.800% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
76 120 5.510% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN MORTGAGE PROPERTY CUT-OFF DATE
LOAN NO. GROUP LOAN SELLER(1) NAME(2) STREET ADDRESS BALANCE(6) NOTE DATE
--------------------------------------------------------------------------------------------------------------------------
77 2 MSMCH Quiet Acres Mobile 000 Xxxxxxx Xxxx $3,269,956 03/08/2007
Home Park
--------------------------------------------------------------------------------------------------------------------------
78 1 MSMCH Southport Business 452-464 & 466-468 $3,164,150 01/31/2007
Center Southlake Blvd;
500-510 Research
--------------------------------------------------------------------------------------------------------------------------
79 2 MSMCH Westpark Townhomes 4301 - 5100 Truesdel $3,120,000 02/13/2007
Court; 4502 - 0000
Xxxxxx Xxxxx
--------------------------------------------------------------------------------------------------------------------------
80 1 MSMCH Walgreens - Bastrop 0000 Xxxx Xxxxxxx $3,045,875 03/09/2007
Avenue
--------------------------------------------------------------------------------------------------------------------------
81 1 MSMCH 00000 Xxxx 000xx Xxxxx 00000 West 183rd $2,994,303 04/24/2007
Place
--------------------------------------------------------------------------------------------------------------------------
82 1 MSMCH Potranco Crossing 0000 Xxxxxxxx Xxxx $2,600,000 12/21/2006
--------------------------------------------------------------------------------------------------------------------------
83 1 MSMCH Midtown Business Park 201-210 E. 37th $2,550,000 03/29/2007
Street
--------------------------------------------------------------------------------------------------------------------------
84 1 MSMCH University Meridian 00000 X. Xxxxxxxxxx $2,540,000 04/11/2007
Center Drive
--------------------------------------------------------------------------------------------------------------------------
85 0 XXXXX Xxxxx Xxxx Industrial 0000 Xxxxx Xxxx Xxxxx $2,520,000 03/23/2007
Building
--------------------------------------------------------------------------------------------------------------------------
86 1 MSMCH Defuniak Commons 0000 X.X. Xxxxxxx $2,418,827 03/27/2007
Retail Center 331 South
--------------------------------------------------------------------------------------------------------------------------
87 1 MSMCH Friendly's Plaza 00-00 Xxxx Xxxx Xxxx $2,387,078 01/25/2007
--------------------------------------------------------------------------------------------------------------------------
88 1 XXXXX Xxxxxxxx Xxxxxxx 0000 Xxxxxxxx $2,225,000 02/15/2007
Xxxx/000 X. 00xx
Xxxxxx
--------------------------------------------------------------------------------------------------------------------------
89 1 MSMCH 1506 Whispering Wind 1506 Whispering Wind $2,092,418 02/05/2007
Drive Drive
--------------------------------------------------------------------------------------------------------------------------
90 1 MSMCH Clermont Retail 0000 Xxxx Xxxxxxx 00 $2,080,000 03/26/2007
--------------------------------------------------------------------------------------------------------------------------
91 1 MSMCH CVS - North Kingstown 0000 Xxxx Xxxx $1,996,169 04/12/2007
--------------------------------------------------------------------------------------------------------------------------
92 1 MSMCH 11770 & 11880 West 11770 & 11880 West $1,850,000 01/23/2007
President Drive President Drive
--------------------------------------------------------------------------------------------------------------------------
93 1 MSMCH Eastpointe Center 000 Xxxxx Xxxxx $1,473,503 05/15/2007
--------------------------------------------------------------------------------------------------------------------------
94 1 MSMCH Advance Auto 0000 X. Xxxxx Xxxxxxx $1,417,945 05/04/2007
Parts-Hollywood FL
--------------------------------------------------------------------------------------------------------------------------
95 1 MSMCH Timberland Store 00 Xxxxxxxxx Xxxxxx $1,296,221 03/02/2007
--------------------------------------------------------------------------------------------------------------------------
96 1 XXXXX Xxxxxx Donuts-Miami 0000 XX 00xx Xxxxxx $1,145,576 03/23/2007
--------------------------------------------------------------------------------------------------------------------------
97 2 MSMCH 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx $1,100,000 02/07/2007
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
ORIGINAL ADMINISTRATIVE
MORTGAGE TERM TO COST MASTER FEE PRIMARY SERVICING
LOAN NO. MATURITY MORTGAGE RATE RATE(27) (BPS) FEE (BPS) FEES (BPS)
--------------------------------------------------------------------------------------------------------
77 120 5.630% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
78 120 6.050% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
79 120 5.820% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
80 120 5.750% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
81 120 5.830% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
82 120 5.710% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
83 60 5.900% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
84 120 5.730% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
85 120 5.840% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
86 120 6.500% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
87 120 5.640% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
88 120 5.960% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
89 120 6.080% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
90 120 5.960% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
91 120 5.790% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
92 120 5.860% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
93 120 5.900% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
94 120 5.980% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
95 120 5.880% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
96 60 6.500% 2.115 1.000 1.000 0.000
--------------------------------------------------------------------------------------------------------
97 120 5.860% 7.115 1.000 1.000 5.000
--------------------------------------------------------------------------------------------------------
SCHEDULE II
[RESERVED]
SCHEDULE III
[RESERVED]
SCHEDULE IV
[RESERVED]
SCHEDULE V
MORTGAGE LOANS FOR WHICH DISBURSEMENT OF EARNOUTS AND HOLDBACKS TO BE
PROCESSED BY SPECIAL SERVICER
MSCI 2007-HQ12: MSMC EARNOUTS/HOLDBACKS/LETTERS OF CREDIT - LOAN ID,
ADDRESS, CUTOFF BALANCES
------------------------------------------------------------------------------------------------------
CUTOFF
CONTROL # LOAN ID LOAN NAME CITY STATE BALANCE
------------------------------------------------------------------------------------------------------
2.1 07-30370 Parkoff Portfolio - 00 Xxxx 00xx Xx Xxx Xxxx XX $ 50,394,375
2.2 07-30371 Parkoff Portfolio - 00 Xxxx 00xx Xx Xxx Xxxx XX $ 46,497,210
2.3 07-29785 Parkoff Portfolio - 00 Xxxx Xxx Xxx Xxx Xxxx XX $ 29,298,905
2.4 07-30368 Parkoff Portfolio - 000 Xxxx 00xx Xx Xxx Xxxx XX $ 18,074,783
2.5 07-30372 Parkoff Portfolio - 000 Xxxx 00xx Xx Xxx Xxxx XX $ 15,588,660
2.6 07-30369 Parkoff Portfolio - 0 Xxxx 00xx Xx Xxx Xxxx XX $ 10,146,068
11 06-29650 The Xxxxx New York NY $ 21,000,000
29 06-26547 Xxxxxxxx House Boston MA $ 15,600,000
34 00-00000 Xxxxxxx Xxxxx Xxxx Xxxxx XX $ 12,900,000
50 00-00000 Xxxxxx Xxxxxxxx Xxxxxxx XX $ 8,500,000
85 06-29364 Overland Retail Plaza Boise ID $ 3,475,000
90 00-00000 Xxxxxx Xxxxx Xxxxxx Xxxxxxxx XX $ 3,300,000
98 06-26378 00000 Xxxx 000xx Xxxxx Xxxxxx Xxxx XX $ 2,994,303
118 07-31252 Uptown Shopping Center Portland OR $ 23,800,000
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY ELIGIBLE ACCOUNTS (SECTION 8.3(E))
NONE
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR WHICH A REPORT UNDER SECTION 5.1(G) IS REQUIRED
SCHEDULE VII
ESCROW ACCOUNTS UNDER SECTION 5.1(G)
INTIIAL TI/LC, CAPEX, AND ENVIRO > 75K (CONFIRM?)
---------------------------------------------------------------------------------------------------------------------------------
LOAN ID SELLER PROPERTY NAME CURRENT BALANCE COMMENTS
---------------------------------------------------------------------------------------------------------------------------------
78 MSMC Southport Business Center $ 3,164,150 Deferred maintenance
16 MSMC Uptown Shopping Center $23,800,000 Deferred maintenance
52 MSMC Uptown Apartments $5,200,000 Deferred maintenance
17 MSMC Holiday Inn Oceanfront & Conference Center $22,977,234 Deferred maintenance
4 MSMC RREEF Portfolio - The Xxxx $4,858,537 Deferred maintenance
0 XXXX XXXXX Xxxxxxxxx - Xxx Xxx $8,654,268 Deferred maintenance
4 MSMC RREEF Portfolio - Carlyle Station $18,371,341 Deferred maintenance
4 MSMC RREEF Portfolio - XxXxxx Farms $14,575,610 Deferred maintenance
0 XXXX XXXXX Xxxxxxxxx - Xxxxxxxxxx Xxxxxxx $20,345,122 Deferred maintenance
4 MSMC RREEF Portfolio - Xxxxxxx Station $6,680,488 Deferred maintenance
4 MSMC RREEF Portfolio - Xxxxxx'x Crossing $29,758,537 Deferred maintenance
00 XXXX Xxxxxxxx Xxxxxxx $19,900,000 Deferred maintenance
5 MSMC Xxxxxxx Entrance $102,500,000 $1,062,500 LOC For roof repairs and chiller
replacement
2 MSMC Parkoff Portfolio - 0 Xxxx 00xx Xx $10,146,068 Environmental Escrow
34 MSMC Millwood Shopping Center $9,000,000 Environmental Escrow
18 MSMC The Xxxxx $21,000,000 $5,125,000 renovation funds
25 MSMC Noble Mansion $13,500,000 $2,880,000 renovation funds
Ask Sellers
Schedule VII are for upfront reserves with earnouts. Below is specific
information on what loans qualify to be put into Schedule VII by the PSA
language.
"Schedule VII sets forth those Mortgage Loans as to which an upfront reserve was
collected at closing IN AN AMOUNT IN EXCESS OF $75,000 with respect to specific
immediate ENGINEERING WORK, COMPLETION OF ADDITIONAL CONSTRUCTION, ENVIRONMENTAL
REMEDIATION OR SIMILAR ONE-TIME PROJECTS (BUT NOT WITH RESPECT TO ESCROW
ACCOUNTS MAINTAINED FOR ONGOING OBLIGATIONS, SUCH AS REAL ESTATE TAXES,
INSURANCE PREMIUMS, ONGOING PROPERTY MAINTENANCE, REPLACEMENTS AND CAPITAL
IMPROVEMENTS OR DEBT SERVICE)."
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD-PARTY BENEFICIARIES UNDER SECTION 2.3(A)
MSCI 2007-HQ12: SCHEDULE VIII
SECTION 2.3 (A) LIST (CROSSED LOANS)
--------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
----------------------------------------------------------------------------------------------------------------------------------
35 MSMC Lakeview I $4,600,000 WA Lakeview I, LLC Xxxxxxx X. Xxxxx
WA Lakeview II,
36 MSMC Lakeview II $4,400,000 LLC Xxxxxxx X. Xxxxx
Florida Retail/Office Portfolio - Ridge Ridge Centre Xxxx X. Xxxxxxxxx; Xxxxxx
47 MSMC Centre Shoppes $4,300,000 Shoppes, LLC Houvardas
56th Street
Florida Retail/Office Portfolio - 56th Professional Xxxx Xxxxxxxxx; Trifon
00 XXXX Xxxxxx Professional Center $1,900,000 Center, LLC Houvardas
Bronx Multifamily/Retail Portfolio - Rosh Management Xxxxxx Roshjadolian;
60 MSMC Valentine Ave $2,300,000 LLC Xxxxxxx Xxxxxxxx
Bronx Multifamily/Retail Portfolio - Xxxxx 26 Xxxxxx Roshjadolian;
61 MSMC Xxxxxxx Ave $1,772,000 Management LLC Xxxxxxx Xxxxxxxx
SCHEDULE IX
EARN OUT RESERVES
N/A
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN ENVIRONMENTAL
INSURANCE POLICY
MSCI 2007-HQ12: SCHEDULE X
ENVIRONMENTAL INSURANCE
--------------------------------------------------------------------------------
MORTGAGE MORTGAGE
PROPERTY NO. LOAN SELLER PROPERTY NAME
--------------------------------------------------------------------------------
2-1 MSMC Parkoff Portfolio - 00 Xxxx 00xx Xx
2-2 MSMC Parkoff Portfolio - 00 Xxxx 00xx Xx
2-3 MSMC Parkoff Portfolio - 00 Xxxx Xxx Xxx
0-0 XXXX Parkoff Portfolio - 000 Xxxx 00xx Xx
2-5 MSMC Parkoff Portfolio - 000 Xxxx 00xx Xx
2-6 MSMC Parkoff Portfolio - 0 Xxxx 00xx Xx
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE END OF A
COLLECTION PERIOD
MSCI 2007-HQ12
COLLECTION PERIOD TABLE
Due Date + Grace Period > Determination Date (Determination Date in HQ11 was the
8th and consequently loans that had a sum of the 8th were not included)
----------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE DUE DEBT SERVICE PAYMENT GRACE
PROPERTY NO. LOAN SELLER PROPERTY NAME DATE PERIOD TO IMPOSE LATE CHARGE
----------------------------------------------------------------------------------------------------
00-0 XXXX Xxxxxxxxx - Xxxxxxxxxx, XX 1 15
SCHEDULE XII
LIST OF MORTGAGE LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT WHOSE
SERVICING FEES ACCRUE ON A 30/360 BASIS
SCHEDULE XII TO PSA
LOANS THAT ACCRUE ON A ACTUAL/360 BASIS
------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE INTEREST
LOAN NO. LOAN SELLER PROPERTY NAME ACCRUAL METHOD
------------------------------------------------------------------------------------------------------------------
1 MSMC Columbia Center Actual/360
2 MSMC Parkoff Portfolio - 00 Xxxx 00xx Xx Actual/360
2 MSMC Parkoff Portfolio - 00 Xxxx 00xx Xx Actual/360
2 MSMC Parkoff Portfolio - 00 Xxxx Xxx Xxx Actual/360
2 MSMC Parkoff Portfolio - 000 Xxxx 00xx Xx Actual/360
2 MSMC Parkoff Portfolio - 000 Xxxx 00xx Xx Actual/360
2 MSMC Parkoff Portfolio - 0 Xxxx 00xx Xx Actual/360
0 XXXX Xxxxxx Xxxxxx Actual/360
3 MSMC Polk & Xxxxxx Actual/360
3 MSMC Xxxxx Fargo Center Actual/360
3 MSMC Lafayette Center Actual/360
3 MSMC Xxxx Xxxxx Complex Actual/360
3 MSMC Key Center Actual/360
3 MSMC Sunset North Actual/360
3 MSMC City Center Bellevue Actual/360
0 XXXX Xxxxx Xxxxxx Actual/360
3 MSMC 1616 North Fort Xxxx Drive Actual/360
3 MSMC American Center Actual/360
3 MSMC Eastgate Office Park Actual/360
3 MSMC Liberty Place Actual/360
3 MSMC Lincoln Executive Center Actual/360
3 MSMC 11111 Sunset Hills Road Actual/360
3 MSMC Army and Navy Building Actual/360
------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE INTEREST
LOAN NO. LOAN SELLER PROPERTY NAME ACCRUAL METHOD
------------------------------------------------------------------------------------------------------------------
0 XXXX Xxxxx Xxxx Actual/360
3 MSMC Reston Town Center Actual/360
3 MSMC Washington Mutual Tower Actual/360
3 MSMC 0000 Xxxxx Xxxxxxxxxxx Xxxxxx Actual/360
4 MSMC RREEF Portfolio - Xxxxxx'x Crossing Actual/360
4 MSMC RREEF Portfolio - Lionsgate Actual/360
4 MSMC RREEF Portfolio - University Heights Actual/360
4 MSMC RREEF Portfolio - Carlyle Station Actual/360
4 MSMC RREEF Portfolio - XxXxxx Farms Actual/360
4 MSMC RREEF Portfolio - Fox Run Actual/360
4 MSMC RREEF Portfolio - Xxxxxxx Station Actual/360
4 MSMC RREEF Portfolio - The Xxxx Actual/360
5 MSMC Xxxxxxx Entrance Actual/360
6 MSMC Four Seasons San Francisco Actual/360
7 MSMC 000 Xxxxx Xxxxxx Actual/360
8 MSMC Deptford Mall Actual/360
9 MSMC Xxxx Hotel Land Loan Actual/360
00 XXXX Xxxxxxx Xxxxxx Xxxxx Xxxxx Actual/360
00 XXXX Xxxxx Xxxx Apartments Actual/360
14 MSMC Somerset Crossing Actual/360
00 XXXX Xxxxxx Xxxxx Xxxxx Xxxxxx Actual/360
16 MSMC Uptown Shopping Center Actual/360
17 MSMC Holiday Inn Oceanfront & Conference Center Actual/360
18 MSMC The Xxxxx Actual/360
19 MSMC 00-00 00xx Xxxxxx Actual/360
20 MSMC Uptown Plaza Actual/360
21 MSMC Plaistow Commons Actual/360
22 MSMC Sun Prairie Apartments I & II Actual/360
23 MSMC Xxxxxxxx House Actual/360
24 MSMC Walnut Crossing Actual/360
25 MSMC Noble Mansion Actual/360
26 MSMC 1200 North Main Office Actual/360
00 XXXX Xxxxxxx Xxxxx Actual/360
28 MSMC Xxxxxx Center Actual/360
29 MSMC Waxahachie Retail Center Actual/360
30 MSMC Mifflin County Commons Actual/360
------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE INTEREST
LOAN NO. LOAN SELLER PROPERTY NAME ACCRUAL METHOD
------------------------------------------------------------------------------------------------------------------
31 MSMC 00-00 00xx Xxxxxx Actual/360
32 MSMC Orange Xxxx Apartments Actual/360
33 MSMC Eola Heights Apartments Actual/360
34 MSMC Millwood Shopping Center Actual/360
35 MSMC Lakeview I Actual/360
36 MSMC Lakeview II Actual/360
37 MSMC Xxxxxxxx Landing Apartments Actual/360
00 XXXX Xxxxxxxxxx xx Xxxxxxxxx Student Housing Actual/360
39 MSMC Xxxxxx Village Apartments Actual/360
40 MSMC Xxxxxx Building Actual/360
41 MSMC The Xxxxxx Apartments Actual/360
42 MSMC Pismo Medical Center Actual/360
43 MSMC Comfort Inn Airport & Conference Center Actual/360
44 MSMC Waterford Shopping Plaza Actual/360
45 MSMC Pilgrim Hill Marketplace Actual/360
46 MSMC Shops at Xxxxxxxx Park Actual/360
47 MSMC Florida Retail/Office Portfolio - Ridge Centre Shoppes Actual/360
48 MSMC Florida Retail/Office Portfolio - 00xx Xxxxxx Professional Center Actual/360
49 MSMC Food World Gardendale Actual/360
50 MSMC 0000 Xxx Xxxxxxxxx Xxxxxx Actual/360
51 MSMC 00000 Xxxxx Xxxxxx Xxxxxxx Actual/360
52 MSMC Uptown Apartments Actual/360
53 MSMC Caballo Industrial Actual/360
54 MSMC Surrey Ridge II Actual/360
55 MSMC Briarwest Shopping Center Actual/360
00 XXXX Xxxxxxx Xxxx Apartments Actual/360
57 MSMC New Horizons - Trinity Apartments Actual/360
57 MSMC New Horizons - Osage Ave Apartments Actual/360
57 MSMC New Horizons - Raleigh Apartments Actual/360
00 XXXX Xxxx Xxxxxxx - Xx. Xxxxxx Xxxxx, XX Actual/360
59 MSMC Parklynn Apartments Actual/360
60 MSMC Bronx Multifamily/Retail Portfolio - Valentine Ave Actual/360
61 MSMC Bronx Multifamily/Retail Portfolio - Xxxxxxx Ave Actual/360
62 MSMC Food World Gadsden Actual/360
63 MSMC Xxxxx Pines Actual/360
64 MSMC Xxxxxxx Commons Actual/360
------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE INTEREST
LOAN NO. LOAN SELLER PROPERTY NAME ACCRUAL METHOD
------------------------------------------------------------------------------------------------------------------
00 XXXX Xxxxxxxxx - Xxxxxxxxxx, XX Actual/360
66 MSMC Xxxxxxx Commons Actual/360
67 MSMC Staples - Naperville Actual/360
00 XXXX Xxxxxxxx Xxxxxxxxx MHP Actual/360
00 XXXX Xxxxxxx Xxx - Xxxxxxxxxxx, XX Actual/360
70 MSMC Overland Retail Plaza Actual/360
71 MSMC 00 Xxxxxxx Xxxxxx Actual/360
72 MSMC Sycamore Terrace Shopping Center Actual/360
73 MSMC The Premier Building Actual/360
00 XXXX Xxxxxx Xxxxx Office Actual/360
75 MSMC Blueridge Commons Actual/360
76 MSMC CVS - Monaca Actual/360
77 MSMC Quiet Acres Mobile Home Park Actual/360
78 MSMC Southport Business Center Actual/360
00 XXXX Xxxxxxxx Townhomes Actual/360
80 MSMC Walgreens - Bastrop Actual/360
81 MSMC 11535 West 183rd Place Actual/360
82 MSMC Potranco Crossing Actual/360
00 XXXX Xxxxxxx Xxxxxxxx Xxxx Actual/360
84 MSMC University Meridian Center Actual/360
00 XXXX Xxxxx Xxxx Industrial Building Actual/360
86 MSMC Defuniak Commons Retail Center Actual/360
87 MSMC Friendly's Plaza Actual/360
88 MSMC Xxxxxxxx Village Actual/360
89 MSMC 1506 Whispering Wind Drive Actual/360
90 MSMC Clermont Retail Actual/360
91 MSMC CVS - North Kingstown Actual/360
92 MSMC 11770 & 00000 Xxxx Xxxxxxxxx Xxxxx Actual/360
93 MSMC Eastpointe Center Actual/360
94 MSMC Advance Auto Parts-Hollywood FL Actual/360
95 MSMC Timberland Store Actual/360
96 MSMC Dunkin Donuts-Miami Actual/360
97 MSMC 0000 Xxxxxx Xxxxxx Actual/360
SCHEDULE XIII
[RESERVED
1
SCHEDULE XIV
[RESERVED
1
SCHEDULE XV
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria"; provided that,
for the avoidance of doubt this Schedule XIV shall not require any assessment of
any criterion to the extent that the assessment of such criterion is not
required under the terms of Regulation AB:
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Master Servicer
Policies and procedures are instituted to monitor any performance or other Special Servicer
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Paying Agent
If any material servicing activities are outsourced to third parties, policies Master Servicer
and procedures are instituted to monitor the third party's performance and Special Servicer
1122(d)(1)(ii) compliance with such servicing activities. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain a back-up servicer
1122(d)(1)(iii) for the mortgage loans are maintained. N/A
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Trustee
A fidelity bond and errors and omissions policy is in effect on the party Master Servicer
participating in the servicing function throughout the reporting period in the Special Servicer
amount of coverage required by and otherwise in accordance with the terms of
1122(d)(1)(iv) the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
------------------------------------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the appropriate custodial bank Paying Agent
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
1122(d)(2)(i) agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or to an investor
1122(d)(2)(ii) are made only by authorized personnel. Paying Agent
------------------------------------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements. Trustee
------------------------------------------------------------------------------------------------------------------------
The related accounts for the transaction, such as cash reserve accounts or Paying Agent
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
1122(d)(2)(iv) transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this Paying Agent
criterion, "federally insured depository institution" with respect to a Master Servicer
foreign financial institution means a foreign financial institution that meets Special Servicer
1122(d)(2)(v) the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Special Servicer
Paying Agent
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These Paying Agent
reconciling items are resolved within 90 calendar days of their original Master Servicer
identification, or such other number of days specified in the transaction Special Servicer
1122(d)(2)(vii) agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
------------------------------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (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
1122(d)(3)(i) mortgage loans serviced by the Servicer. Paying Agent
------------------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the transaction
1122(d)(3)(ii) agreements. Paying Agent
------------------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
1122(d)(3)(iii) transaction agreements. Paying Agent
------------------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports agree with cancelled
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements. Paying Agent
------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
------------------------------------------------------------------------------------------------------------------------
Trustee
Master Servicer
Collateral or security on mortgage loans is maintained as required by the Special Servicer
1122(d)(4)(i) transaction agreements or related mortgage loan documents. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements. Trustee
------------------------------------------------------------------------------------------------------------------------
Custodian
Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicer
and approved in accordance with any conditions or requirements in the Special Servicer
1122(d)(4)(iii) transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Payments on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number
of days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage Master Servicer
1122(d)(4)(iv) loan documents. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
3
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
1122(d)(4)(v) records with respect to an obligor's unpaid principal balance. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by Master Servicer
authorized personnel in accordance with the transaction agreements and related Special Servicer
1122(d)(4)(vi) pool asset documents. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the Master Servicer
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements. Special Servicer
------------------------------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls, Master Servicer
letters and payment rescheduling plans in cases where delinquency is deemed Special Servicer
1122(d)(4)(viii) temporary (e.g., illness or unemployment). Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor (such as escrow accounts):
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days Master Servicer
1122(d)(4)(x) specified in the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, Master Servicer
1122(d)(4)(xi) or such other number of days specified in the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Any late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer's funds and not charged to the Master Servicer
1122(d)(4)(xii) obligor, unless the late payment was due to the obligor's error or omission. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are posted within two business days
to the obligor's records maintained by the servicer, or such other number of Master Servicer
1122(d)(4)(xiii) days specified in the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
1122(d)(4)(xiv) recorded in accordance with the transaction agreements. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
4
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements. N/A
------------------------------------------------------------------------------------------------------------------------
5
SCHEDULE XVI
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-D Item described in the "Item on Form 10-D" column to the extent such
party has actual knowledge (and in the case of financial statements required to
be provided in connection with Item 6 below, possession) of such information
(other than information as to itself). Each of the Paying Agent, the Trustee,
the Master Servicer, any Primary Servicer and the Special Servicer (in its
capacity as such) shall be entitled to rely on the accuracy of the Prospectus
Supplement (other than information with respect to itself that is set forth in
or omitted from the Prospectus Supplement), in the absence of specific notice to
the contrary from the Depositor or Seller. Each of the Paying Agent, the
Trustee, the Master Servicer, any Primary Servicer and the Special Servicer (in
its capacity as such) shall be entitled to assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. For
this Series 2007-HQ12 Pooling and Servicing Agreement, each of the Paying Agent,
the Trustee, the Master Servicer, any Primary Servicer and the Special Servicer
(in its capacity as such) shall be entitled to assume that there is no provider
of credit enhancement, liquidity or derivative instruments within the meaning of
Items 1114 or 1115 of Regulation AB other than a party identified as such in the
Prospectus Supplement.
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
------------------------------------------------------------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Paying Agent/Trustee
------------------------------------------------------------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Paying Agent
o Item 1121 (a)(14) of Regulation AB o Depositor
------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to the extent o Special Servicer (as to itself)
material to certificate holders) o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
(in the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
such litigation pursuant to Section 9.35)
o The Seller as sponsor (as defined in Regulation AB)
------------------------------------------------------------------------------------------------------------------
6
------------------------------------------------------------------------------------------------------------------
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Paying Agent
o Trustee
------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Paying Agent
Holders o Trustee
------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Applicable Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
------------------------------------------------------------------------------------------------------------------
Item 8: Other Information o Paying Agent
o Any other party responsible for disclosure items
on Form 8-K
------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits o Paying Agent
o Depositor
o Master Servicer
o Trustee
o Primary Servicer
------------------------------------------------------------------------------------------------------------------
7
SCHEDULE XVII
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.5 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-K Item described in the "Item on Form 10-K" column to the extent such
party has actual knowledge (and in the case of financial statements required to
be provided in connection with 1112(b) below, possession) of such information
(other than information as to itself). Each of the Paying Agent, the Trustee,
the Master Servicer, any Primary Servicer and the Special Servicer (in its
capacity as such) shall be entitled to rely on the accuracy of the Prospectus
Supplement (other than information with respect to itself that is set forth in
or omitted from the Prospectus Supplement), in the absence of specific notice to
the contrary from the Depositor or a Seller. Each of the Paying Agent, the
Trustee, the Master Servicer, any Primary Servicer and the Special Servicer (in
its capacity as such) shall be entitled to assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. For
this Series 2007-HQ12 Pooling and Servicing Agreement, each of the Paying Agent,
the Trustee, the Master Servicer, any Primary Servicer and the Special Servicer
(in its capacity as such) shall be entitled to assume that there is no provider
of credit enhancement, liquidity or derivative instruments within the meaning of
Items 1114 or 1115 of Regulation AB other than a party identified as such in the
Prospectus Supplement.
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
------------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information (information required to be o Paying Agent
disclosed on Form 8-K that was not properly disclosed o Any other party responsible for disclosure items on
Form 8-K
------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Paying Agent
o Depositor
------------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to the extent o Paying Agent (as to itself)
material to certificate holders) o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
(in the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
such litigation pursuant to Section 9.35)
o The Seller as sponsor (as defined in
------------------------------------------------------------------------------------------------------------------
8
------------------------------------------------------------------------------------------------------------------
Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB (to the extent o Special Servicer (as to itself, other than the
material to the Certificateholders) Seller, the Depositor or the Trust)
o Paying Agent (as to itself)
See Item 1119 (a)(b) ss.(c) o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
o The Seller as sponsors (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Master Servicer
o Primary Servicer
------------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of o Trustee
Regulation AB o Master Servicer
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
9
SCHEDULE XVIII
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Paying Agent the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has actual knowledge of such information (other than
information as to itself). Each of the Paying Agent, the Trustee, the Master
Servicer, any Primary Servicer and the Special Servicer (in its capacity as
such) shall be entitled to rely on the accuracy of the Prospectus Supplement
(other than information with respect to itself that is set forth in or omitted
from the Prospectus Supplement), in the absence of specific notice to the
contrary from the Depositor or a Seller. Each of the Paying Agent, the Trustee,
the Master Servicer, any Primary Servicer and the Special Servicer (in its
capacity as such) shall be entitled to assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. For
this Series 2007-HQ12 Pooling and Servicing Agreement, each of the Paying Agent,
the Trustee, the Master Servicer, any Primary Servicer and the Special Servicer
(in its capacity as such) shall be entitled to assume that there is no provider
of credit enhancement, liquidity or derivative instruments within the meaning of
Items 1114 or 1115 of Regulation AB other than a party identified as such in the
Prospectus Supplement.
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
------------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer (as to
agreements such entity is a party to or
entered into on behalf of the Trust)
------------------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer (as to
agreements such entity is a party to or
entered into on behalf of the Trust)
------------------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
------------------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase o Master Servicer
a Direct Financial Obligation or an Obligation under an o Paying Agent
Off-Balance Sheet Arrangement o Paying Agent
------------------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security o Paying Agent
Holders o Trustee
------------------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or o Depositor
Bylaws; Change of Fiscal Year
------------------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o Depositor
------------------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer (as to itself or a
------------------------------------------------------------------------------------------------------------------
10
------------------------------------------------------------------------------------------------------------------
servicer retained by it)
o Primary Servicer
o Trustee
o Paying Agent
o Depositor
------------------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Paying Agent
------------------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Paying Agent
------------------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
------------------------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
------------------------------------------------------------------------------------------------------------------
Item 8.01 o Depositor
------------------------------------------------------------------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Paying Agent
o Trustee
o Primary Servicer
------------------------------------------------------------------------------------------------------------------
11
SCHEDULE XVIX
Additional Disclosure Notification
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
XXX.XXX.XXXXXXXXXXXXX@XXXXXXXXXX.XXX AND VIA OVERNIGHT MAIL TO THE ADDRESSES
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, National Association, as Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services- [DEAL NAME]--SEC REPORT PROCESSING
[ ]
[ ]
[ ]
Attn: [ ]
[ ]
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 [ ][ ], 2006, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ],
as [ ]. 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:
12
SCHEDULE XX
Seller Sub-Servicers
SELLER-SUBSERVICERS RETAINED BY MASTER SERVICER
-----------------------------------------------
FOR ALL PURPOSES OF THIS AGREEMENT
----------------------------------
Capmark Finance Inc.
Northmarq Capital, Inc.
SOLELY FOR PURPOSES OF THE SECOND PARAGRAPH OF SECTION 8.4(b)
-------------------------------------------------------------
Xxxxxxxx, Xxxxx & Co.
Holliday, Fenoglio, Xxxxxx, XX
13
