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XXXXXX XXXXXXX CAPITAL I INC.,
AS DEPOSITOR,
CAPMARK FINANCE INC.,
AS MASTER SERVICER,
X.X. XXXXXX COMPANY, INC.,
AS SPECIAL SERVICER,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE AND CUSTODIAN
LASALLE BANK NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
----------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2007
----------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions......................................... vi
Section 1.2 Calculations Respecting Mortgage Loans.............. lxxxi
Section 1.3 Calculations Respecting Accrued Interest............ lxxxii
Section 1.4 Interpretation...................................... lxxxii
Section 1.5 ARD Loans........................................... lxxxii
Section 1.6 Certain Matters with respect to Loan Pairs
and A/B Mortgage Loans.............................. lxxxiii
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans........................ lxxxv
Section 2.2 Acceptance by Trustee and Custodian................. lxxxviii
Section 2.3 Seller's Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of
Representations and Warranties...................... xc
Section 2.4 Representations and Warranties...................... xcvi
Section 2.5 Conveyance of Interests............................. xcvii
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage
Loans............................................... xcvii
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.................................... xcviii
Section 3.2 Registration........................................ xcix
Section 3.3 Transfer and Exchange of Certificates............... xcix
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates... cvi
Section 3.5 Persons Deemed Owners............................... cvi
Section 3.6 Access to List of Certificateholders' Names and
Addresses........................................... cvi
Section 3.7 Book-Entry Certificates............................. cvii
Section 3.8 Notices to Clearing Agency.......................... cx
Section 3.9 Definitive Certificates............................. cx
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer..................... cxi
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage
Loans and Serviced Pari Passu Mortgage Loans........ cxii
Section 4.2 Servicing Advances.................................. cxiii
Section 4.3 Advances by the Trustee............................. cxv
i
Section 4.4 Evidence of Nonrecoverability....................... cxv
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan............ cxvi
Section 4.6 Reimbursement of Advances and Advance Interest...... cxvii
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections......................................... cxix
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account............................ cxxiii
Section 5.3 Distribution Account and Reserve Account............ cxxxiv
Section 5.4 Paying Agent Reports................................ cxxxvii
Section 5.5 Paying Agent Tax Reports............................ cxl
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally............................. cxl
Section 6.2 REMIC I............................................. cxli
Section 6.3 REMIC II............................................ cxli
Section 6.4 Reserved............................................ cxlii
Section 6.5 REMIC III and Excess Interest Grantor Trust......... cxlii
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability................. cli
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate
Prepayment Interest Shortfalls...................... cliii
Section 6.8 Adjustment of Servicing Fees........................ cliv
Section 6.9 Appraisal Reductions................................ cliv
Section 6.10 Compliance with Withholding Requirements............ clv
Section 6.11 Prepayment Premiums................................. clv
Section 6.12 Other Distributions................................. clvi
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............................................... clix
Section 7.2 Certain Matters Affecting the Trustee, the Custodian
and the Paying Agent................................ clx
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans......... clxii
Section 7.4 The Trustee and the Paying Agent May Own
Certificates........................................ clxiv
Section 7.5 Eligibility Requirements for the Trustee and the
Paying Agent........................................ clxiv
Section 7.6 Resignation and Removal of the Trustee or the
Paying Agent........................................ clxiv
Section 7.7 Successor Trustee or Paying Agent................... clxvi
Section 7.8 Merger or Consolidation of Trustee, Custodian or
Paying Agent........................................ clxvii
ii
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents
or Custodian........................................ clxviii
Section 7.10 Authenticating Agents............................... clxx
Section 7.11 Indemnification of Trustee, the Custodian and the
Paying Agent........................................ clxx
Section 7.12 Fees and Expenses of Trustee and the Paying Agent... clxxii
Section 7.13 Collection of Moneys................................ clxxiii
Section 7.14 Trustee To Act; Appointment of Successor............ clxxiii
Section 7.15 Notification to Holders............................. clxxv
Section 7.16 Representations and Warranties of the Trustee and
the Paying Agent.................................... clxxvi
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee, the Custodian and
the Paying Agent.................................... clxxvii
Section 7.18 Appointment of Luxembourg Paying Agent; Notification
to Certificateholders............................... clxxviii
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties................ clxxix
Section 8.2 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Master Servicer............ clxxxi
Section 8.3 Master Servicer's General Power and Duties.......... clxxxi
Section 8.4 Primary Servicing and Sub-Servicing................. clxxxviii
Section 8.5 Servicers May Own Certificates...................... cxci
Section 8.6 Maintenance of Hazard Insurance, Other Insurance,
Taxes and Other..................................... cxci
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause............... cxciv
Section 8.8 Trustee and Custodian to Cooperate; Release of
Custodian Mortgage Files............................ cxcix
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit
of the Certificateholders........................... cc
Section 8.10 Servicing Compensation.............................. cci
Section 8.11 Master Servicer Reports; Account Statements......... ccii
Section 8.12 Reserved............................................ cciv
Section 8.13 Reserved............................................ ccv
Section 8.14 CMSA Operating Statement Analysis Reports Regarding
the Mortgaged Properties............................ ccv
Section 8.15 Other Available Information and Certain Rights of
the Master Servicer................................. ccvi
Section 8.16 Rule 144A Information............................... ccviii
Section 8.17 Inspections......................................... ccix
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents............................................ ccix
Section 8.19 Specially Serviced Mortgage Loans................... ccxiii
Section 8.20 Representations, Warranties and Covenants of the
Master Servicer..................................... ccxiii
Section 8.21 Merger or Consolidation............................. ccxv
Section 8.22 Resignation of Master Servicer...................... ccxv
Section 8.23 Assignment or Delegation of Duties by Master
Servicer............................................ ccxvi
Section 8.24 Limitation on Liability of the Master Servicer and
Others.............................................. ccxvi
Section 8.25 Indemnification; Third-Party Claims................. ccxix
Section 8.26 Reserved............................................ ccxxii
iii
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions.......................................... ccxxii
Section 8.28 Termination......................................... ccxxii
Section 8.29 Procedure Upon Termination.......................... ccxxv
Section 8.30 Operating Adviser Contact with Master Servicer and
Special Servicer.................................... ccxxvii
Section 8.31 Class A-4FL Swap Contract........................... ccxxvii
Section 8.32 Class A-MFL Swap Contract........................... ccxxix
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer.......................... ccxxxi
Section 9.2 Fidelity Bond and Errors and Omissions Insurance
Policy of Special Servicer.......................... ccxxxiii
Section 9.3 Sub-Servicers....................................... ccxxxiii
Section 9.4 Special Servicer General Powers and Duties.......... ccxxxiii
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance Clauses.......... ccxxxvi
Section 9.6 Release of Mortgage Files........................... ccxli
Section 9.7 Documents, Records and Funds in Possession of
Special Servicer To Be Held for the Trustee......... ccxlii
Section 9.8 Representations, Warranties and Covenants of the
Special Servicer.................................... ccxliii
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies........................ ccxliv
Section 9.10 Presentment of Claims and Collection of Proceeds.... ccxlvi
Section 9.11 Compensation to the Special Servicer................ ccxlvi
Section 9.12 Realization Upon Defaulted Mortgage Loans........... ccxlviii
Section 9.13 Foreclosure......................................... ccl
Section 9.14 Operation of REO Property........................... ccl
Section 9.15 Sale of REO Property................................ ccliv
Section 9.16 Realization on Collateral Security.................. cclv
Section 9.17 Reserved............................................ cclvi
Section 9.18 Reserved............................................ cclvi
Section 9.19 RESERVED............................................ cclvi
Section 9.20 Merger or Consolidation............................. cclvi
Section 9.21 Resignation of Special Servicer..................... cclvi
Section 9.22 Assignment or Delegation of Duties by Special
Servicer............................................ cclvii
Section 9.23 Limitation on Liability of the Special Servicer and
Others.............................................. cclviii
Section 9.24 Indemnification; Third-Party Claims................. cclx
Section 9.25 Reserved............................................ cclxii
Section 9.26 Special Servicer May Own Certificates............... cclxii
Section 9.27 Tax Reporting....................................... cclxii
Section 9.28 Application of Funds Received....................... cclxii
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions.......................................... cclxiii
Section 9.30 Termination......................................... cclxiii
Section 9.31 Procedure Upon Termination.......................... cclxv
iv
Section 9.32 Certain Special Servicer Reports.................... cclxvi
Section 9.33 Special Servicer to Cooperate with the Master
Servicer, the Trustee and Paying Agent.............. cclxix
Section 9.34 Reserved............................................ cclxxi
Section 9.35 Reserved............................................ cclxxi
Section 9.36 Sale of Defaulted Mortgage Loans.................... cclxxi
Section 9.37 Operating Adviser; Elections........................ cclxxiv
Section 9.38 Limitation on Liability of Operating Adviser........ cclxxv
Section 9.39 Duties of Operating Adviser......................... cclxxv
Section 9.40 Rights of the Holder of a B Note.................... cclxxvii
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation
of Mortgage Loans................................... cclxxix
Section 10.2 Procedure Upon Termination of Trust................. cclxxxi
Section 10.3 Additional Trust Termination Requirements........... cclxxxii
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..................... cclxxxiii
Section 11.2 Access to List of Holders........................... cclxxxiv
Section 11.3 Acts of Holders of Certificates..................... cclxxxv
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration................................ cclxxxvi
Section 12.2 Prohibited Transactions and Activities.............. ccxci
Section 12.3 Modifications of Mortgage Loans..................... ccxci
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status........................................ ccxcii
Section 12.5 Class A-4FL Grantor Trust, Class A-MFL Grantor Trust
and Excess Interest Grantor Trust................... ccxcii
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness............... ccxciii
Section 13.2 Information to be Provided by the Master Servicer,
the Special Servicer, any Primary Servicer and the
Paying Agent........................................ ccxciv
Section 13.3 Filing Obligations.................................. ccxcv
Section 13.4 Form 10-D Filings................................... ccxcv
Section 13.5 Form 10-K Filings................................... ccxcvii
Section 13.6 Xxxxxxxx-Xxxxx Certification........................ ccxcix
Section 13.7 Form 8-K Filings.................................... ccc
v
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports.................. cccii
Section 13.9 Annual Compliance Statements........................ ccciii
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria.................................. cccv
Section 13.11 Annual Independent Public Accountants' Servicing
Report.............................................. cccvi
Section 13.12 Indemnification..................................... cccvii
Section 13.13 Amendments.......................................... cccix
Section 13.14 Exchange Act Report Signatures...................... cccix
Section 13.15 Termination of the Paying Agent and Sub-Servicers... cccix
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement......................... cccx
Section 14.2 Entire Agreement.................................... cccx
Section 14.3 Amendment........................................... cccx
Section 14.4 GOVERNING LAW....................................... cccxiv
Section 14.5 Notices............................................. cccxiv
Section 14.6 Severability of Provisions.......................... cccxiv
Section 14.7 Indulgences; No Waivers............................. cccxiv
Section 14.8 Headings Not to Affect Interpretation............... cccxv
Section 14.9 Benefits of Agreement............................... cccxv
Section 14.10 Special Notices to the Rating Agencies.............. cccxv
Section 14.11 Counterparts........................................ cccxvii
Section 14.12 Intention of Parties................................ cccxvii
Section 14.13 Recordation of Agreement............................ cccxviii
Section 14.14 Rating Agency Monitoring Fees....................... cccxviii
Section 14.15 Acknowledgement by Primary Servicer................. cccxix
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-3-1 Certificate
EXHIBIT A-5 Form of Class A-3-2 Certificate
EXHIBIT A-6 Form of Class A-AB Certificate
EXHIBIT A-7 Form of Class A-4 Certificate
EXHIBIT A-8 Form of Class A-4FL Certificate
EXHIBIT A-9 Form of Class A-M Certificate
EXHIBIT A-10 Form of Class A-MFL Certificate
EXHIBIT A-11 Form of Class A-J Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
vi
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))
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 Form of Principal Global Investors, LLC Primary Servicing
Agreement
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 (LaSalle)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (MSMC)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (PCFII)
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
vii
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 Form of Assignment and Assumption Submission to Special
Servicer (Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
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 Capmark 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 LaSalle Loan Schedule
SCHEDULE II MSMC Loan Schedule
SCHEDULE III PCFII Loan Schedule
SCHEDULE IV Reserved
SCHEDULE V Reserved
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)
SCHEDULE IX Earn Out Reserves
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 Class A-AB Planned Principal Balance
SCHEDULE XIV Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE XV Additional Form 10-D Disclosure
SCHEDULE XVI Additional Form 10-K Disclosure
SCHEDULE XVII Form 8-K Disclosure Information
SCHEDULE XVIII Additional Disclosure Notification
SCHEDULE XIX Seller Sub-Servicers
viii
THIS POOLING AND SERVICING AGREEMENT is dated as of February 1, 2007
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), CAPMARK FINANCE INC., as master
servicer (the "Master Servicer"), X.X. XXXXXX COMPANY, INC., as special servicer
(the "Special Servicer"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as trustee of
the Trust and custodian (the "Trustee") and LASALLE BANK NATIONAL ASSOCIATION,
only in its capacity as paying agent (the "Paying Agent"), certificate registrar
and authenticating agent.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), LaSalle
Bank National Association, as seller ("LaSalle") and Principal Commercial
Funding II, LLC, as seller ("PCFII"), 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-4FL Regular Interest and the Class
A-MFL 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-4FL Certificates as consideration for its transfer of the Class A-4FL Regular
Interest and the Class A-4FL Swap Contract to the Trust; and (vi) the Class
A-MFL Certificates as consideration for its transfer of the Class A-MFL Regular
Interest and the Class A-MFL 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-4FL Regular Interest and the Class A-MFL
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-4FL Certificates representing in the aggregate the entire beneficial ownership
of the Class A-4FL Grantor Trust and (F) the Class A-MFL Certificates
representing in the aggregate the entire beneficial ownership of the Class A-MFL
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 III Regular Certificates,
the Residual Certificates, the Class T Certificates, the Class A-4FL
Certificates, the Class A-4FL Regular Interest, the Class A-MFL Certificates and
the Class A-MFL Regular Interest 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.
1
The Class A Senior, Class A-M, Class A-MFL, Class A-J, Class B, Class
C, Class D, Class E and Class F Certificates (collectively, the "Registered
Certificates") will be offered for sale pursuant to the prospectus (the
"Prospectus") dated February 6, 2007, as supplemented by a free writing
prospectus dated February 6, 2007, as further supplemented by the free writing
prospectuses dated February 14, 2007 (together the "Free Writing Prospectus",
and together with the Prospectus, the "Preliminary Prospectus Supplement"), and
as further supplemented by the final prospectus supplement dated February 15,
2007 (the "Prospectus Supplement", and together with the Prospectus, the "Final
Prospectus Supplement"), and the Class X, 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 February 1, 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
REMIC REGULAR
CORRESPONDING INITIAL CLASS II REGULAR INTEREST CERTIFICATE
CERTIFICATES CERTIFICATE BALANCE INTERESTS (1) BALANCE
------------- ------------------- ------------- --------------------
Class A-1 $ 44,400,000 A-1 $ 44,400,000
Class A-1A $355,879,000 A-1A $355,879,000
Class A-2 $196,200,000 A-2 $196,200,000
Class A-3-1 $306,000,000 A-3-1 $306,000,000
2
CORRESPONDING INITIAL REMIC II
REMIC REGULAR
CORRESPONDING INITIAL CLASS II REGULAR INTEREST CERTIFICATE
CERTIFICATES CERTIFICATE BALANCE INTERESTS (1) BALANCE
------------- ------------------- ------------- --------------------
Class A-3-2 $ 50,000,000 A-3-2 $ 50,000,000
Class A-AB $ 59,300,000 A-AB $ 59,300,000
Class A-4 $500,573,000 A-4 $500,573,000
ClassA-4FL $180,000,000(1) A-4FL $180,000,000(1)
Class A-M $161,765,000 A-M $161,765,000
ClassA-MFL $ 80,000,000(2) A-MFL $ 80,000,000(2)
Class A-J $190,389,000 A-J $190,389,000
Class B $ 18,133,000 B $ 18,133,000
Class C $ 36,264,000 C $ 36,264,000
Class D $ 24,177,000 D $ 24,177,000
Class E $ 12,088,000 E $ 12,088,000
Class F $ 21,155,000 F $ 21,155,000
Class G $ 24,176,000 G $ 24,176,000
Class H $ 27,199,000 H $ 27,199,000
Class J $ 24,176,000 J $ 24,176,000
Class K $ 33,243,000 K $ 33,243,000
Class L $ 9,066,000 L $ 9,066,000
Class M $ 6,044,000 M $ 6,044,000
Class N $ 9,066,000 N $ 9,066,000
Class O $ 3,022,000 O $ 3,022,000
Class P $ 9,066,000 P $ 9,066,000
Class Q $ 9,067,000 Q $ 9,067,000
Class S $ 27,198,574 S $ 27,198,574
(1) REMIC II Regular Interest A-4FL corresponds to the Class A-4FL Regular
Interest, having an initial Certificate Balance of $180,000,000.
(2) REMIC II Regular Interest A-MFL corresponds to the Class A-MFL Regular
Interest, having an initial Certificate Balance of $80,000,000.
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-4FL Certificates or the Class A-MFL Certificates, the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest, respectively,
represented thereby) comprising the interests in REMIC III created hereunder.
3
INITIAL AGGREGATE
REMIC III INTEREST INITIAL PASS-THROUGH CERTIFICATE BALANCE OR FINAL SCHEDULED
DESIGNATION RATE(a) NOTIONAL AMOUNT DISTRIBUTION DATE(b)
------------------ -------------------- ---------------------- --------------------
Class A-1 5.246% $ 44,400,000 9/12/2011
Class A-1A 5.422% $ 355,879,000 1/12/2017
Class A-2 5.359% $ 196,200,000 3/12/2012
Class A-3-1 5.439% $ 306,000,000 1/12/2014
Class A-3-2 5.441% $ 50,000,000 1/12/2014
Class A-AB 5.444% $ 59,300,000 7/12/2016
Class A-4 5.447% $ 500,573,000 1/12/2017
Class A-4FL(c) 5.455% $ 180,000,000 1/12/2017
Class A-M 5.478% $ 161,765,000 1/12/2017
Class A-MFL(d) 5.490% $ 80,000,000 1/12/2017
Class A-J 5.508% $ 190,389,000 2/12/2017
Class B 5.538% $ 18,133,000 2/12/2017
Class C 5.558% $ 36,264,000 2/12/2017
Class D 5.587% $ 24,177,000 2/12/2017
Class E 5.627% $ 12,088,000 2/12/2017
Class F 5.637% $ 21,155,000 2/12/2017
Class G 5.593% $ 24,176,000 2/12/2017
Class H 5.688% $ 27,199,000 2/12/2017
Class J 5.688% $ 24,176,000 2/12/2017
Class K 5.688% $ 33,243,000 2/12/2017
Class L 5.192% $ 9,066,000 2/12/2017
Class M 5.192% $ 6,044,000 2/12/2017
Class N 5.192% $ 9,066,000 2/12/2017
Class O 5.192% $ 3,022,000 2/12/2017
Class P 5.192% $ 9,066,000 2/12/2017
Class Q 5.192% $ 9,067,000 2/12/2017
Class S 5.192% $ 27,198,574 6/12/2017
Class X 0.265% $2,417,646,574 6/12/2017
Class R-III(e) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (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 G, Class H, Class J, Class K and Class X
Certificates.
(b) 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.
(c) The Class A-4FL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-4FL Grantor
Trust, which is comprised of (i) the Class A-4FL Regular Interest (bearing
a fixed rate of interest at 5.447% per annum, subject to a cap equal to the
Weighted Average REMIC I Net Mortgage Rate) and the Class A-4FL Swap
Contract and all payments under the Class A-4FL Regular Interest and the
Class A-4FL Swap Contract, (ii) all funds and assets on deposit from time
to time in the Class A-4FL Floating Rate Account and (iii) proceeds of all
of the foregoing.
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The parties intend that the portion of the Trust representing the Class
A-4FL 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.
(d) 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 fixed rate of interest at 5.478% per annum, subject to a cap 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.
(e) 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 $2,417,646,575.
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 (together with the REMIC III Regular Certificates, the
"REMIC III Certificates") will be designated as the sole Class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
EXCESS INTEREST GRANTOR TRUST, CLASS A-MFL GRANTOR TRUST AND CLASS
A-4FL 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-4FL Regular Interest, the Class A-4FL Swap Contract
and the Class A-4FL Floating Rate Account (such portion of the Trust, the "Class
A-4FL Grantor Trust") and (iii) the segregated pool of assets consisting of the
5
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") 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-4FL
Certificates represent pro rata undivided beneficial interests in the Class
A-4FL Grantor Trust. The Class A-MFL Certificates represent pro rata undivided
beneficial interests in the Class A-MFL Grantor Trust.
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 One Seaport Plaza A/B Mortgage Loan, the
Deptford Mall A/B Mortgage Loan, the Easton Apartments A/B Mortgage Loan, the
Hampton Inn-Cranberry Township A/B Mortgage Loan, the Yearling Green Apartments
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 30-day months, except in the case
of the Class A-4FL Certificates and the Class A-MFL 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.
6
"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 XVIII.
"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, the
Primary Servicer, MSMC, LaSalle, PCFII, 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, the Primary Servicer,
MSMC, LaSalle, PCFII, the Depositor or any of the Underwriters, and who Services
10% or more of the Mortgage Loans (based on their Principal Balance). For
clarification purposes, the Paying Agent is an Additional Servicer and the
Trustee is not an Additional Servicer.
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor or paid from Late Fees or default interest
as provided in Section 4.5); (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 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 Paying Agent or the Certificate Registrar,
such as costs for office space, office equipment,
7
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-4FL Grantor Trust, the Class A-MFL 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-4FL Grantor Trust, the
Class A-MFL 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.
"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
8
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. section 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 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
9
such Mortgage Loan, Loan Pair or A/B Mortgage Loan, and (iv) to the extent funds
on deposit in any applicable Escrow Accounts are not sufficient therefor, and to
the extent not previously advanced by the 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.
"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
(ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage
Loan, the portion of the appraised value allocable thereto.
10
"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 2007 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
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schedule that is significantly longer than its term to maturity and that is
expected to have a remaining principal balance equal to or greater than 5% of
its original principal balance as of its stated maturity date, unless prepaid
prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKING DAY" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates (except for the Class
A-4FL Certificates and the Class A-MFL Certificates), the Class A-4FL Regular
Interest and the Class A-MFL 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-4FL Regular Interest or the Class
A-MFL 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-4FL Regular Interest or the Class A-MFL Regular
Interest, then the Base Interest Fraction shall be equal to 1.0.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as 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, Des Moines, Iowa
(but only with respect to matters related to the performance of obligations of
Principal Global Investors, LLC as Primary Servicer under the Primary Servicing
Agreement), San Francisco, California 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
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savings associations in Minneapolis, Minnesota, New York, New York, Chicago,
Illinois 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. Section 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."
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"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class A-4FL Certificates, the Class A-MFL 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, Class A-4FL Regular Interest, Class A-4FL
Certificates, Class A-MFL Regular Interest or Class A-MFL Certificates, any
Class of such Certificates or Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2
CERTIFICATES," "CLASS A-3-1 CERTIFICATES," "CLASS A-3-2 CERTIFICATES," "CLASS
A-AB CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS A-4FL CERTIFICATES," "CLASS
A-M CERTIFICATES," "CLASS A-MFL CERTIFICATES," "CLASS A-J CERTIFICATES," "CLASS
B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS 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-3-1," "Class A-3-2," "Class A-AB," "Class A-4," "Class A-4FL," "Class A-M,"
"Class A-MFL," "Class A-J," "Class B," "Class C," "Class D," "Class E," "Class
F," "Class G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N,"
"Class 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-4FL 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-4FL 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-4FL Regular
Interest pursuant to the Class A-4FL 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-4FL
Regular Interest for so long as the Class A-4FL Swap Contract is in effect; and
(b) all amounts required to be paid to the Swap Counterparty in respect of the
Class A-4FL Regular Interest pursuant to the Class A-4FL Swap Contract.
"CLASS A-4FL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-4FL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in March 2007, by the Master
Servicer on behalf of the Trustee to the Swap Counterparty pursuant to the Class
A-4FL Swap Contract at a rate equal to the Pass-Through
15
Rate of the Class A-4FL Regular Interest on the Class A-4FL Floating Rate
Certificate Notional Amounts subject to reduction in accordance with the Class
A-4FL Swap Contract.
"CLASS A-4FL 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-4FL Certificates, which
shall be entitled "LaSalle Bank National Association, as Paying Agent on behalf
of Xxxxx Fargo Bank, National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11, Floating Rate Account, Class A-4FL"
and "Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Trust
2007-HQ11, Floating Rate Account, Class A-4FL," respectively; provided, that the
Class A-4FL Floating Rate Account may be a subaccount of the Distribution
Account or the Certificate Account. The Class A-4FL Floating Rate Account shall
be an asset of the Class A-4FL Grantor Trust.
"CLASS A-4FL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-4FL Regular
Interest.
"CLASS A-4FL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-4FL Regular Interest and the Class A-4FL Swap
Contract and all payments under the Class A-4FL Regular Interest and the Class
A-4FL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-4FL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-4FL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-4FL 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-4FL Regular Interest pursuant to
the terms of the Class A-4FL 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-4FL Regular Interest not
required to be paid to the Swap Counterparty (which will arise due to the
netting provisions of the Class A-4FL Swap Contract or upon the termination or
expiration of the Class A-4FL 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-4FL Swap Contract is terminated, the
Class A-4FL Interest Distribution Amount will be an amount equal to the
Distributable Certificate Interest in respect of the Class A-4FL 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-4FL Swap Contract is
obtained.
"CLASS A-4FL NET SWAP PAYMENT" has the meaning set forth in Section
8.31(g).
"CLASS A-4FL 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-4FL Regular Interest on such Distribution Date.
"CLASS A-4FL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance
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equal to the Certificate Balance of the Class A-4FL Certificates, and which has
a Pass-Through Rate equal to 5.447% per annum.
"CLASS A-4FL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of February 1, 2007, between the Swap Counterparty and the Trust, and
the Credit Support Annex (as defined in the Class A-4FL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-4FL 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 amounts 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 March 2007, by the Master
Servicer on behalf of the Trustee 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 "LaSalle Bank National Association, as Paying Agent on behalf
of Xxxxx Fargo Bank, National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11, Floating Rate Account, Class A-MFL"
and "Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Trust
2007-HQ11, Class A-MFL 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.
17
"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 per
annum rate of the lesser of 5.478% and the Weighted Average REMIC I Net Mortgage
Rate in respect of each Distribution Date.
"CLASS A-MFL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of February 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 SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-1A Certificates, the Class A-2 Certificates, the Class A-3-1
Certificates, the Class A-3-2 Certificates, the Class A-AB Certificates, the
Class A-4 Certificates and the Class A-4FL Certificates, collectively.
18
"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 February 28, 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 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 Trustee and reasonably acceptable to the Master Servicer, 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.
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"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.
"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 Master Servicer's 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
20
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 III
Regular Certificates, Class A-4FL Certificates or Class A-MFL 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 III Regular Certificates, Class A-4FL
Certificates or Class A-MFL 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.
"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 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services-MSCI 2007-HQ11,
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ11 and the office of the
Certificate Registrar is presently located for certificate transfer purposes at
000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services - Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ11, 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-4FL Certificates or the Class A-MFL Certificates, the Class
A-4FL Regular Interest or the Class A-MFL 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-4FL Certificates or
the Class A-MFL Certificates, the Class A-4FL Regular Interest or the Class
A-MFL 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. The initial Custodian shall be Xxxxx
Fargo Bank, National Association.
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"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.
"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 February 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 February 1, 2007, and
Scheduled Payments due in February 2007 with respect to Mortgage Loans not
having Due Dates on the first of each month have been deemed received on
February 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).
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"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.
"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 A/B MORTGAGE LOAN" means the Deptford Mall Mortgage
Loan, the Deptford Mall Companion Loan, if and when advanced, the Deptford Mall
B Note and the Xxxxxxxx Xxxx X-0 Note, if and when advanced.
"DEPTFORD MALL B NOTE" means, with respect to the Deptford Mall A/B
Mortgage Loan, the related subordinated B Note not included in the Trust, which
is subordinated in right of payment to the Deptford Mall Mortgage Loan and the
Deptford Mall Companion Loan (if advanced) and on a pari passu basis with the
Xxxxxxxx Xxxx X-0 Note (if advanced) to the extent set forth in the related
Intercreditor Agreement.
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"DEPTFORD MALL B-2 NOTE" means the loan resulting from those future
advances made, if any, by the related Seller or another financial institution
that will be secured by the Deptford Mall Mortgage on a subordinate basis to the
Deptford Mall Mortgage Loan and the Deptford Mall Companion Loan (if advanced)
and on a pari passu basis with the Deptford Mall B Note. The Deptford Mall B-2
Note will be deemed to be a B Note if and when advanced.
"DEPTFORD MALL COMPANION LOAN" means the loan resulting from those
future advances made, if any, by the related Seller or another financial
institution that will be secured by the Deptford Mall Mortgage Loan mortgaged
property on a pari passu basis with the Deptford Mall Mortgage Loan and on a
senior basis with respect to the Deptford Mall B Note and the Deptford Mall B-2
Note (if advanced). The Deptford Mall Companion Loan will be deemed to be a
Serviced Companion Mortgage Loan if and when advanced.
"DEPTFORD MALL MORTGAGE" means the Mortgage securing the Deptford Mall
A/B Mortgage Loan and any other note secured by the related Mortgaged Property.
"DEPTFORD MALL MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 7 on the Mortgage Loan Schedule and which will be pari passu
with the Deptford Mall Companion Loan, if and when advanced, and is senior to
the Deptford Mall B Note and the Xxxxxxxx Xxxx X-0 Note, if and when advanced,
and is secured by the related Mortgaged Property pursuant to the Deptford Mall
Mortgage. The Deptford Mall Mortgage Loan is a "Mortgage Loan."
"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 March 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
24
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-4FL
Certificates, the Class A-MFL Certificates, the Residual Certificates and the
Class T Certificates) or Interests (including the Class A-4FL Regular Interest
and the Class A-MFL 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 March 14,
2007.
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"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.
"EASTON APARTMENTS A/B MORTGAGE LOAN" means the Easton Apartments
Mortgage Loan and the Easton Apartments B Note.
"EASTON APARTMENTS B NOTE" means, with respect to the Easton
Apartments A/B Mortgage Loan, the related subordinated B Note not included in
the Trust, which is subordinated in right of payment to the Easton Apartments
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"EASTON APARTMENTS MORTGAGE" means the Mortgage securing the Easton
Apartments A/B Mortgage Loan and any other note secured by the related Mortgaged
Property.
"EASTON APARTMENTS MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 68 on the Mortgage Loan Schedule and which is senior to the
Easton Apartments B Note and is secured by the related Mortgaged Property
pursuant to the Easton Apartments Mortgage. The Easton Apartments Mortgage Loan
is a "Mortgage Loan."
"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 "P-1" by Moody's and "A-1" by S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at xxxxx "X0" by Moody's and at least "AA-" by S&P
(or "A-", if the short-term unsecured debt obligations are rated at least
"A-1"), 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 subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b) and whose long-term senior unsecured debt
obligations or other long-term deposits, or its parent's long-term senior
unsecured debt obligations or other long-term deposits, are rated at least
"Baa3" by Moody's, 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 "P-1" in the case of Moody's, and "A-1" in the case of
S&P, if the deposits are to be held in the account for 30 days or less, or (B)
long-term unsecured debt obligations are rated at least "Aa3" in the case of
Moody's and at least "AA-" in the case of S&P, if the deposits are to be held in
the account for more than 30 days.
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"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 "A-1" by S&P and "Prime-1" by Moody's 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 S&P and
"Aa2" by Moody's 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
"A-1" by S&P and "Prime-1" by Moody's (or for which Rating Agency Confirmation
is obtained with respect to such ratings);
27
(vi) units of investment funds (including money market funds)
that are rated in the highest long-term category by Moody's, or if not rated by
Moody's then Moody's 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 "Aa2" by Moody's and "AA-" by
S&P, 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 "AAAm" or "AAAm-G" (or its equivalent rating) by S&P and "Aaa"
(or its equivalent rating) by Moody's, 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 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.
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"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.
"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
29
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.
There will be no Excess Servicing Fee payable on any of the Mortgage Loans.
"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.
30
"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 and Intex Solutions,
Inc., or any successor entities thereof.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"485 LEXINGTON AVENUE COMPANION LOAN" means, collectively, the two
notes that are secured by the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage on a pari
passu basis with the 000 Xxxxxxxxx Xxxxxx Pari Passu Loan. The 000 Xxxxxxxxx
Xxxxxx Companion Loan is not a "Mortgage Loan".
"485 LEXINGTON AVENUE LOAN GROUP" means, collectively, the 000
Xxxxxxxxx Xxxxxx Pari Passu Loan and the 000 Xxxxxxxxx Xxxxxx Companion Loan.
"485 LEXINGTON AVENUE PARI PASSU LOAN" means Mortgage Loan No. 4,
which is secured on a pari passu basis with the 000 Xxxxxxxxx Xxxxxx Companion
Loan pursuant to the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage.
"485 LEXINGTON AVENUE PARI PASSU MORTGAGE" means the mortgage securing
the 000 Xxxxxxxxx Xxxxxx Loan Group.
31
"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.
"HAMPTON INN-CRANBERRY TOWNSHIP A/B MORTGAGE LOAN" means the Hampton
Inn-Cranberry Township Mortgage Loan and the Hampton Inn-Cranberry Township B
Note.
"HAMPTON INN-CRANBERRY TOWNSHIP B NOTE" means, with respect to the
Hampton Inn-Cranberry Township A/B Mortgage Loan, the related subordinated B
Note not included in the Trust, which is subordinated in right of payment to the
Hampton Inn-Cranberry Township Mortgage Loan to the extent set forth in the
related Intercreditor Agreement.
"HAMPTON INN-CRANBERRY TOWNSHIP MORTGAGE" means the Mortgage securing
the Hampton Inn-Cranberry Township A/B Mortgage Loan and any other note secured
by the related Mortgaged Property.
"HAMPTON INN-CRANBERRY TOWNSHIP MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 83 on the Mortgage Loan Schedule and which is
senior to the Hampton Inn-Cranberry Township B Note and is secured by the
related Mortgaged Property pursuant to the Hampton Inn-Cranberry Township
Mortgage. The Hampton Inn-Cranberry Township Mortgage Loan is a "Mortgage Loan."
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the 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
32
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 and, with
respect to Mortgage Loan No. 123, which was originated in February 2007 and has
its first Due Dates in April 2007, an amount equal to $21,788.67, which amount
represents one month's interest on the initial Principal Balance of such
Mortgage Loan.
"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.
"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
33
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-4FL Regular Interest or the Class A-MFL Regular Interest, as applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates (other than the Class A-4FL Certificates
and the Class A-MFL Certificates) and Interests (including the Class A-4FL
Regular Interest and the Class A-MFL 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-4FL Certificates and the Class A-MFL
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.
"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" has the meaning set forth in the Preliminary Statement
hereto.
34
"LASALLE LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"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 of one month, which appears
on the Telerate page 3750 as the "London Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the arithmetic mean of the offered
quotations obtained by the Paying Agent 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 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 5.320%.
"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
35
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 B Note 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 180 days or more after the applicable
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, only to the extent 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 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, unpaid Servicing Advances and unpaid
Advance Interest) 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,
36
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.
"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.
37
"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 Capmark Finance Inc. and its permitted
successors or assigns.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in Section
8.3(a).
"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).
"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.
38
"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. 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 from a Mortgagor by
the Master Servicer in connection with a modification of any Mortgage Loan
(other than a Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B
Note other than a Specially Serviced Mortgage Loan or collected in connection
with a modification by the Special Servicer of a Specially Serviced Mortgage
Loan.
"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the 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
39
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, the 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-4FL Regular Interest and the Class A-MFL
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 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)
40
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); (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; (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-4FL Swap Contract and the Class A-MFL
Swap Contract or the amounts paid in respect of either 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-4FL Swap Contract and the Class A-MFL 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-4FL Certificates or the Class A-MFL 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-4FL Certificates or Class A-MFL 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.
"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.
41
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of Xxxxx Fargo Bank, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11, 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 applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
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 applicable Seller together with
(A) in the case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (B) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11"; 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 applicable
Seller shall take all actions as are necessary to
42
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 applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned on or prior to the 45th day following the
Closing Date from the applicable recording office or has been lost, a true and
correct copy thereof, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that such original intervening assignment of Mortgage has been sent to
the appropriate public recording official for recordation or (B) in the case of
an original intervening assignment of Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, 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 applicable 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 applicable 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 "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," 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
applicable 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;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
43
(viii) the original or copy of the 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 or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by the
title company or its authorized agent;
(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 applicable 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 each Seller has agreed (a) that
the proceeds of such letter of credit belong to the Trust, (b) to notify, on or
before the Closing Date, the bank issuing the letter of credit that the letter
of credit and the proceeds thereof belong to the Trust, and to use reasonable
efforts to obtain within 30 days (but in any event to obtain within 90 days)
following the Closing Date, an acknowledgement thereof by the bank (with a copy
of such acknowledgement to be sent to the 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
(in the case of
44
the PCFII Mortgage Loans) held by the 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.
"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, Mortgage Loan Purchase Agreement II or Mortgage Loan Purchase
Agreement III, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between LaSalle and the Depositor dated as of February 15,
2007 with respect to the LaSalle Loans, a form of which is attached hereto as
Exhibit K-1.
45
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of February 15, 2007
with respect to the MSMC Loans, a form of which is attached hereto as Exhibit
K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage
Loan Purchase Agreement between PCFII and the Depositor dated as of February 15,
2007 with respect to the PCFII Loans, a form of which is attached hereto as
Exhibit K-3.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each LaSalle Loan, the
schedule attached hereto as Schedule II, which identifies each MSMC Loan and the
schedule attached hereto as Schedule III, which identifies each PCFII Loan, as
such schedules may be amended from time to time pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE 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.
"MSMC" has the meaning set forth in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"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.
46
"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-4FL Grantor Trust, the Class A-MFL 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 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
47
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 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 Loan related to
the Trust is the 000 Xxxxxxxxx Xxxxxx Companion Loan.
"NON-SERVICED MORTGAGE LOAN" means a Mortgage Loan included in the
Trust but serviced under another agreement. The Non-Serviced Mortgage Loan in
the Trust is the 000 Xxxxxxxxx Xxxxxx 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 Mortgage related
to the Trust is the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means the
pooling and servicing agreement under which a Non-Serviced Mortgage Loan is
serviced. The Non-Serviced Mortgage Loan Pooling and Servicing Agreement related
to the Trust is the Non-Serviced Mortgage Loan Intercreditor Agreement that
governs the 000 Xxxxxxxxx Xxxxxx Pari Passu Loan until such time as the 000
Xxxxxxxxx Xxxxxx Pari Passu Pari Passu Loan is serviced under another pooling
and servicing agreement in accordance with the terms of the Intercreditor
Agreement that governs the 000 Xxxxxxxxx Xxxxxx Pari Passu Loan.
48
"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
"ONE SEAPORT PLAZA A/B MORTGAGE LOAN" means the One Seaport Plaza
Mortgage Loan and the One Seaport Plaza B Note.
"ONE SEAPORT PLAZA B NOTE" means, with respect to the One Seaport
Plaza A/B Mortgage Loan, the related subordinated B Note not included in the
Trust, which is subordinated in right of payment to the One Seaport Plaza
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"ONE SEAPORT PLAZA MORTGAGE" means the Mortgage securing the One
Seaport Plaza A/B Mortgage Loan and any other note secured by the related
Mortgaged Property.
"ONE SEAPORT PLAZA MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is senior to the
One Seaport Plaza B Note and is secured by the related Mortgaged Property
pursuant to the One Seaport Plaza Mortgage. The One Seaport Plaza Mortgage Loan
is a "Mortgage Loan."
"OPERATING ADVISER" shall mean the Person 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,
49
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 JER Investors Trust Inc.
"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 REMIC for tax purposes, of any REMIC Pool or status as
a "grantor trust" under the Code of the Class A-4FL Grantor Trust, the Class
A-MFL 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.
50
"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 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.
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"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 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.
"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 III
Regular Certificates, other than the Class X, Class G, Class H, Class J and
Class K 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 G, Class H, Class J and Class K
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 Certificates shall equal the fixed rate corresponding to such
Class set forth in the Preliminary Statement hereto, (v) the Class A-2
Certificates shall equal the fixed rate corresponding to such Class set forth in
the Preliminary Statement hereto, (vi) the Class A-3-1 Certificates shall equal
the fixed rate corresponding to such Class set forth in the Preliminary
Statement hereto, (vii) the Class A-3-2 Certificates shall equal the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto,
(viii) the Class A-AB Certificates shall equal the fixed rate corresponding to
such Class set forth in the Preliminary Statement hereto, (ix) the Class A-4
Certificates and the Class A-4FL Regular Interest shall equal the lesser of (A)
5.447% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (x) the Class A-4FL Certificates shall equal the per annum
rate equal to LIBOR plus 0.135%, provided, however, that under the circumstances
set forth in Section 6.12
52
regarding defaults or terminations under the Class A-4FL Swap Contract, the
Pass-Through Rate of the Class A-4FL Certificates shall equal the Pass-Through
Rate of the Class A-4FL Regular Interest subject to reduction in accordance with
the Class A-4FL Swap Contract, (xi) the Class A-M Certificates and the Class
A-MFL Regular Interest shall equal the lesser of (A) 5.478% per annum and (B)
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xii)
the Class A-MFL Certificates shall equal the per annum rate equal to LIBOR plus
0.170%, 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, (xiii) the Class A-J Certificates shall equal the
lesser of (A) 5.508% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xiv) the Class B Certificates shall equal the
lesser of (A) 5.538% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xv) the Class C Certificates shall equal the
lesser of (A) 5.558% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xvi) the Class D Certificates shall equal the
lesser of (A) 5.587% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xvii) the Class E Certificates shall equal the
lesser of (A) 5.627% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xviii) the Class F Certificates shall equal
the lesser of (A) 5.637% per annum and (B) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (xix) the Class G Certificates shall
equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
less 0.095%, (xx) the Class H Certificates shall equal the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (xxi) the Class J
Certificates shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (xxii) the Class K Certificates shall equal the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (xxiii) Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates shall equal
the lesser of (A) 5.192% per annum and (B) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (xxiv) 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, (xxv) the Class A-4FL Regular Interest shall equal the lesser of
(A) 5.447% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date and (xxvi) the Class A-MFL Regular Interest shall equal
the lesser of (A) 5.478% per annum and (B) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date.
"PAYING AGENT" means LaSalle 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.
"PCFII" has the meaning set forth in the Preliminary Statement hereto.
53
"PCFII LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"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 TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"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. Section 2510.3-101.
"PLANNED PRINCIPAL BALANCE" means for any Distribution Date, the
balance, shown for such Distribution Date on Schedule XIII.
"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
54
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 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 Principal Global Investors, LLC and its
permitted successors and assigns with respect to the PCFII Loans.
"PRIMARY SERVICING AGREEMENT" means the agreement between the Primary
Servicer and the Master Servicer, dated as of February 1, 2007, a form of which
is attached hereto as Exhibit G-1, under which the Primary Servicer services the
Mortgage Loans set forth on the schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, 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
55
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 February 2007 that is not February 1, 2007, that principal
and interest payments for such month were paid on February 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-3-1, Class A-3-2, Class A-AB, Class A-4, Class
A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates.
"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
56
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 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 February 15, 2007, pursuant to which the Class X, 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.
57
"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 Trust 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 Trust 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 the purchase by the Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan 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 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 related 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
58
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
"A2" by Moody's, if rated by Moody's, or if not rated by Moody's, then Moody's
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 Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability no lower than
"A2" by Moody's if rated by Moody's, or if not rated by Moody's, then Moody's
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
59
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 related Seller's expense, that such Mortgage Loan is a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the 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
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-4FL Certificates and the Class A-MFL Certificates), the Class A-4FL Regular
Interest or the Class A-MFL 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.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in February 2044.
"RATING AGENCIES" means Moody's 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
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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 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 S&P or "A3" by Moody's.
"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, for each Distribution Date, (i) with respect to
each Class of Certificates, other than the Class A-4FL Certificates and the
Class A-MFL Certificates, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs and (ii) with respect
to the Class A-4FL Certificates and the Class A-MFL Certificates, subject to
Section 6.12, the Business Day immediately preceding the related Distribution
Date.
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"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 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. Sections 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
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unless its related Serviced Pari Passu Mortgage Loan also would constitute a
Rehabilitated Mortgage Loan.
"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 XIV 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-4FL Floating Rate
Account, the Class A-MFL Floating Rate Account, 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-4FL Regular Interest, the Class A-MFL Regular Interest, the
Class A-4FL Swap Contract, the Class A-MFL Swap Contract, the Class A-4FL
Floating Rate Account, the Class A-MFL Floating Rate Account, any 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 Class R-I Certificates.
"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
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after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate) as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date, minus (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 and February 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 2007) 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; provided that the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Date in March
2007 shall be determined taking into account an amount equal to two day's
interest for each Interest Reserve Loan deposited into the Interest Reserve
Account on the Closing Date;
"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 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 a 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 a 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 a 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.
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"REMIC II REGULAR INTEREST A-3-1" 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-3-1 Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3-2" 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-3-2 Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-AB" 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-AB 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 a 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-4FL" 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 Certificate Balance of the
Class A-4FL Regular Interest, 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 a Certificate Balance equal to the Certificate Balance of the
Class A-MFL Regular Interest, 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 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.
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"REMIC II REGULAR INTEREST C" 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 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 a 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 a 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 a 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 a 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
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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.
"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-3-1, the REMIC II Regular Interest A-3-2,
the REMIC II Regular Interest A-AB, the REMIC II Regular Interest A-4, the REMIC
II Regular Interest A-4FL, 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 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" has the meaning set forth in the penultimate
paragraph of the Preliminary Statement hereto.
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"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-3-1
Certificates, Class A-3-2 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates, Class P Certificates, Class Q
Certificates, Class S Certificates, Class X Certificates, the Class A-4FL
Regular Interest and the Class A-MFL 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 III REGULAR CERTIFICATES" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB, Class A-4, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, 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
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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.
"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 (if and for such time as it is a Servicing Function
Participant) 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.
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"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.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee, any officer assigned to the Corporate Trust and Loan Agency, or with
respect to the Paying Agent, any officer assigned to the Global Securities and
Trust Services Group, each with specific responsibilities for the matters
contemplated by this Agreement and when used with respect to any successor
Trustee, 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, an 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) 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, Class B and the Class A-J Certificates, and,
then on a pro rata basis, to the Class A-M Certificates and the Class A-MFL
Certificates or the Class A-MFL Regular Interest, as applicable, and finally to
the Class X and Class A Senior Certificates (including the Class A-4FL
Certificates or the Class A-4FL Regular Interest, as applicable), on a pro rata
basis, as set forth herein.
"RREEF PORTFOLIO A-6 COMPANION LOAN" means the loan resulting from
those future advances made, if any, by the related Seller that will be secured
by the RREEF Portfolio Pari Passu Mortgage on a pari passu basis with the RREEF
Portfolio Pari Passu Loan and the RREEF Portfolio Companion Loan. The RREEF
Portfolio A-6 Companion Loan will not be a "Mortgage Loan".
"RREEF PORTFOLIO COMPANION LOAN" means, collectively, the three notes
that are secured by the RREEF Portfolio Pari Passu Mortgage on a pari passu
basis with the RREEF Portfolio Pari Passu Loan and the RREEF Portfolio A-6
Companion Loan, if and when advanced. The RREEF Portfolio A-6 Companion Loan
will be deemed to be part of the RREEF
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Portfolio Companion Loan, if and when funded. The RREEF Portfolio Companion Loan
is not a "Mortgage Loan".
"RREEF PORTFOLIO LOAN GROUP" means, collectively, the RREEF Portfolio
Pari Passu Loan and the RREEF Portfolio Companion Loan.
"RREEF PORTFOLIO PARI PASSU LOAN" means Mortgage Loan No. 3, which is
secured on a pari passu basis with the RREEF Portfolio Companion Loan pursuant
to the RREEF Portfolio Pari Passu Mortgage.
"RREEF PORTFOLIO PARI PASSU MORTGAGE" means the mortgage securing the
RREEF Portfolio Loan Group.
"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.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"SELLER" means LaSalle, MSMC or PCFII, as the case may be.
"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 XIX 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 Serviced Companion Mortgage Loans related to the Trust are (i) the RREEF
Portfolio Companion Loan, the RREEF Portfolio A-6 Companion Loan, if and when
advanced on a pari passu basis with the RREEF Portfolio Pari Passu Loan and the
RREEF Portfolio Companion Loan and (ii) the Deptford Mall Companion Loan, if and
when advanced on a pari passu basis with the Deptford Mall Mortgage 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 a
"Mortgage Loan" included in the Trust and is paid on a pari passu basis with a
Serviced Companion Mortgage Loan. The Serviced Pari Passu Mortgage Loans related
to the Trust are the RREEF Portfolio Pari Passu Loan and the Deptford Mall
Mortgage 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
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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 required to be (and actually) delivered to the applicable
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
73
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:
(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; and (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.
"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 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
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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 knowledge, the Mortgagor has consented to the appointment of a
receiver or conservator in any insolvency or similar proceeding of, or relating
to, such Mortgagor or to all or substantially all of its property, or the
Mortgagor has become the subject of a decree or order issued under a bankruptcy,
insolvency or similar law and such decree or order shall have remained
undischarged 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 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 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
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, (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, 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
75
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.
"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 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-3-1, Class A-3-2, Class A-AB,
Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K Certificates
have been reduced to zero.
"SPECIAL SERVICER" means X.X. Xxxxxx Company, 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
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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 the Scheduled Principal Balance of
such Specially Serviced Mortgage Loan immediately before the Due Date occurring
in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"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 the Master
Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received 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
77
functions identified in Item 1122(d) of Regulation AB with respect to Mortgage
Loans under the direction or authority of the Master Servicer, the Special
Servicer, an Additional Servicer or a Sub-Servicer.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-M, Class
A-MFL, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class 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 either the Class A-4FL Swap Contract or the
Class A-MFL 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 any failure on the part of the Swap Counterparty
to (i) make a required payment under a Swap Contract or (ii) either post
acceptable collateral, cause an acceptable entity to guarantee or provide an
indemnity in respect of the Swap Counterparty's obligations, find an acceptable
replacement Swap Counterparty after a Rating Agency Trigger Event or enter into
any other arrangement acceptable to the Rating Agencies, in each case, as
required by the Schedule to the related ISDA Master Agreement.
"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).
"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.
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"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, 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-4FL Floating Rate Account, the Class
A-4MFL 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) hereof); REMIC II; REMIC III; the Class A-4FL Swap Contract, the
Class A-MFL Swap Contract, the Class A-4FL Regular Interest, the Class A-MFL
Regular Interest and funds or assets from time to time on deposit in the Class
A-4FL Floating Rate Account, the Class A-MFL 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 Xxxxx Fargo 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 0.00084% per annum, which, includes the
Paying Agent Fee.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated, LaSalle
Financial Services, Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx and 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
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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-4FL Regular Interest and the Class
A-MFL Regular Interest) or Certificates (other than the Class A-4FL
Certificates, the Class A-MFL Certificates and the Residual Certificates), the
portion of 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) a Loan Level
Reserve Report, (iv) an REO Status Report, and (v) a Total Loan 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.
"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.
"YEARLING GREEN APARTMENTS A/B MORTGAGE LOAN" means the Yearling Green
Apartments Mortgage Loan and the Yearling Green Apartments B Note.
"YEARLING GREEN APARTMENTS B NOTE" means, with respect to the Yearling
Green Apartments A/B Mortgage Loan, the related subordinated B Note not included
in the
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Trust, which is subordinated in right of payment to the Yearling Green
Apartments Mortgage Loan to the extent set forth in the related Intercreditor
Agreement.
"YEARLING GREEN APARTMENTS MORTGAGE" means the Mortgage securing the
Yearling Green Apartments A/B Mortgage Loan and any other note secured by the
related Mortgaged Property.
"YEARLING GREEN APARTMENTS MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 145 on the Mortgage Loan Schedule and which is
senior to the Yearling Green Apartments B Note and is secured by the related
Mortgaged Property pursuant to the Yearling Green Apartments Mortgage. The
Yearling Green Apartments Mortgage Loan is a "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 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.
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SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate (other than the Class A-4FL Certificates and the Class A-MFL
Certificates), on the Class A-4FL Regular Interest and on the Class A-MFL
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-4FL Certificates and the Class A-MFL 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.
(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."
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(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 and
Section 9.5 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 and Section 9.5
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.
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,
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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
applicable 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 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
related 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 formed hereunder or to any
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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 the grantor trust tax or expense with
respect to any REMIC 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 respect to any
Non-Serviced Mortgage Loan, (v) with respect to the Class A-4FL Certificates,
the Class A-4FL Swap Contract, the Class A-4FL Regular Interest and funds or
assets from time to time on deposit in the Class A-4FL 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 and (vii) all other assets
included or to be included in REMIC I, the Excess Interest Grantor Trust, the
Class A-4FL Grantor Trust or the Class A-MFL 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.
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(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the 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 applicable 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 applicable 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
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 applicable Seller shall obtain
therefrom a certified copy of the recorded original. The applicable 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 applicable 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 applicable Seller shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate. After the applicable 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 each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form
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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 applicable 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 related Seller, but in no event earlier than 18 months from the Closing
Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially
Serviced Mortgage Loan. The Custodian shall submit such documents for recording,
at the related Seller's expense, after the periods set forth above; provided,
however, the Custodian shall not submit such assignments for recording if the
applicable Seller produces evidence that it has sent any such assignment for
recording and certifies that it is awaiting its return from the applicable
recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the 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 benefit of the Certificateholders. To the
extent delivered to the Master Servicer or the applicable Primary Servicer by
the related Seller, the Servicer Mortgage File, will include, to the extent
required to be (and actually) delivered to the applicable 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, no Seller shall 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 related 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
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executed counterpart of each Mortgage Loan Purchase Agreement, as in full force
and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall
contain the representations and warranties made by the Sellers with respect to
each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the LaSalle
Loans from LaSalle, the MSMC Loans from MSMC and the PCFII Loans from PCFII. 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 LaSalle 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. 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 MSMC 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. 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 PCFII 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,
LaSalle, MSMC and PCFII, as applicable, are required under the Mortgage Loan
Purchase Agreements to deliver Assignments of Mortgages and assignments of
Assignments of Leases and assignments of UCC financing statements 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 LaSalle Loans shall be deemed to have been transferred
from LaSalle to the Depositor, the MSMC Loans shall be deemed to have been
transferred from MSMC to the Depositor, the PCFII Loans shall be deemed to have
been transferred from PCFII 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 documents constituting a part of the Mortgage Files delivered to it,
(ii) the REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in
each case, in trust for the use and benefit of all present and future
Certificateholders, and the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest for the use and benefit of all present and future Holders of
the Class A-4FL Certificates and the Class A-MFL 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
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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 Sellers, 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.
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 each 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
applicable Seller), such recordation to be at the expense of the applicable
Seller; provided, however, that the Custodian shall not submit for
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recording any such assignments if the applicable Seller produces evidence that
it has sent any such assignment for recording and is awaiting its return from
the applicable recording office. In giving the certifications required above,
the 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 shall continuously update such
schedule of exceptions to reflect receipt of any corrected documents, additional
documents or instruments or evidences of recordation and/or filing, as to each
Mortgage Loan, until the earliest of the following dates: (i) the date on which
all such exceptions are eliminated (any such elimination resulting from the fact
that recordation and/or filing has been completed shall be based solely on
receipt by the Custodian or the Trustee of the particular documents showing
evidence of the recordation and/or filing), (ii) the date on which all the
affected Mortgage Loans are removed from the Trust and (iii) the second
anniversary of the Closing Date, and shall provide such updated schedule of
exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the 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.
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.
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(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 a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and,
in either case, 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 related 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 related Seller, not later than 90 days from such Seller's receipt of the
notice of such Material Document Defect or Material Breach, cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects; provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all material
respects within such 90-day period, and such Material Document Defect or
Material Breach would not cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code) but the related Seller is diligently
attempting to effect such correction or cure, as certified by such Seller in an
Officer's Certificate delivered to the Trustee, then the cure period will be
extended for an additional 90 days unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is then 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.
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 related 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 related Mortgage Loan Purchase Agreement, or (ii) if within the three-
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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 related 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 related Seller was notified of the defect and substitution must occur
within the sooner of (i) 85 days from the date the related 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
related 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 related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The 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 related 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 related Seller or its designee to any Deleted Mortgage Loan (including any
property acquired in respect thereof or any insurance policy proceeds relating
thereto) substituted for pursuant to this Section 2.3.
If (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
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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 related 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 related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (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 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 related Seller to (in which case the related 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 related Seller if the scope and cost of the Appraisal is approved by the
related Seller (such approval not to be unreasonably withheld) and (B) an
Opinion of Counsel that not requiring the repurchase of each such other Crossed
Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Defective Mortgage Loan, to the extent that the
applicable 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 related Seller and the Depositor have
agreed in the related 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
related Seller shall have furnished 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 applicable Seller and the Depositor have agreed in the applicable Mortgage
Loan Purchase Agreement that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the applicable Seller shall repurchase or substitute for the
Repurchased Loan and all related Crossed-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross Collateralized
Mortgage Loans shall be allocated
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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 related Seller for
the cure of the document defect or repurchase or replacement of the related
Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the 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 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related 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 related 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 related Seller shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the related Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the related Seller to or for the benefit of such
Person.
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The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify the related Seller of the discovery of
the Material Document Defect or Material Breach and the related 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 related Seller is or was obligated to repurchase the related Mortgage Loan
or REO Mortgage Loan (a "Final Judicial Determination") or the related Seller
otherwise accepts liability, then, but in no event later than the termination of
the Trust pursuant to Section 9.30 hereof, the related Seller will be obligated
to pay to the Trust the difference between any Liquidation Proceeds received
upon such liquidation (including those arising from any sale to the related
Seller) and the Purchase Price.
In any month in which the related 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 related Seller to deposit the amount of such shortage
into the Certificate Account in the month of substitution, without any
reimbursement thereof. In addition, the Depositor shall cause the related Seller
to deposit into the Certificate Account, together with such shortage, if any, an
amount equal to interest on the Deleted Mortgage Loans at a rate equal to the
sum of the applicable Mortgage Rate from the Due Date as to which interest was
last paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, 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 related
Seller, upon delivery to each of them of a receipt executed by such Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the Mortgage
File shall be endorsed or assigned to the extent necessary or appropriate to the
related Seller or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially
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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,
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
related 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 (i) LaSalle, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the LaSalle
Loans, (ii) MSMC, as Seller under Mortgage Loan Purchase Agreement II, will be
providing the remedies with respect to the MSMC Loans and (iii) PCFII, as Seller
under Mortgage Loan Purchase Agreement III, will be providing the remedies with
respect to the PCFII 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
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jurisdiction over it, which materially and adversely affects or to the best
knowledge of the Depositor may in the future materially and adversely affect (i)
the ability of the Depositor to perform its obligations under this Agreement or
(ii) the business, operations, financial condition, properties or assets of the
Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the assets of REMIC I in exchange for
the REMIC I Interests, (ii) the 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-4FL Regular Interest and the Class A-MFL
Regular Interest, (iv) the Class A-4FL Regular Interest and the Class A-4FL Swap
Contract in exchange for the Class A-4FL Certificates, (v) the Class A-MFL
Regular Interest and the Class A-MFL Swap Contract in exchange for the Class
A-MFL Certificates and (vi) 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 applicable Seller of copies of each such document specified
herein (other than the Mortgage Note (and all intervening
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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 applicable Seller of copies of such documents made in favor of the trustee
of the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(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 Paying Agent 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 and the Class A-J Certificates will be issuable in
denominations of $25,000 initial Certificate Balance and in any whole dollar
denomination in excess thereof. The Class 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.
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(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class A-M,
Class A-MFL, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S and Class X 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 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
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the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with 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
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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
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.
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(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:
(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,
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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 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
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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.
(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 Paying Agent 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 Paying Agent on such terms as the Paying
Agent 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.
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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 of REMIC I, REMIC II or REMIC III to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which
is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer
of a Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master 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.
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(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
any mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master 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
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normal business hours to a current list of the Certificateholders. The expense
of providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-1A, Class A-2, Class A-3-1, Class A-3-2,
Class A-AB, Class A-4, Class A-4FL, Class A-M, Class A-MFL, 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,
upon original issuance, each shall be issued in the form of one or more
Certificates representing the Book-Entry Certificates, to be delivered to the
Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided, that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors 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
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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 G, Class H, Class J and Class K 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 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.
(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
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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 Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, 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
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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 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
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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.
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) The Master Servicer shall make a P&I Advance in respect of each
Mortgage Loan of the P&I Advance Amount (if greater than zero) 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, in which event the
Special Servicer shall promptly direct the Master Servicer not 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-4FL
Certificates or the Class A-MFL 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
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distribution to the Class A-4FL Certificates or the Class A-MFL 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.
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 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
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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.
Following a securitization of a Serviced Companion Mortgage Loan, the
Master Servicer shall be required to deliver to the related Other Master
Servicer (provided the Master Servicer has received notice of all delivery
instructions from the 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 two Business Days 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 two Business Days of the making
of such Advance and (iii) notice of any determination that any Servicing Advance
is a Nonrecoverable Advance within two Business Days 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 30 days of receipt of a statement therefor. 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
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determined, in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance.
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.
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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 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 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
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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, 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. 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 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 expires pursuant to the related Mortgage Loan or B
Note documents but shall be entitled to interest on such Advance at the Advance
Rate for the period beyond the expiration of the grace period to the extent the
Scheduled Payment remains outstanding beyond the expiration of the grace period.
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
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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 (x) exceed
unreimbursed Additional Trust Expenses and Advance Interest (incurred in respect
of the related Mortgage Loan) with respect to the Mortgage Loans arising on or
after the Cut-Off Date and (y) are not used to pay Special Servicing Fees,
Liquidation Fees and Workout Fees accrued with respect to such Collection Period
on such Mortgage Loan. 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 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 and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation. It
is hereby acknowledged that the applicable Master Servicer may only waive Late
Fees and default interest to the extent set forth in Section 8.3(a).
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, 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."
(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 for
any Advances outstanding to the Master Servicer with respect to any of such
Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced
Mortgage Loans or REO
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Mortgage Loans, plus any Advance Interest owed to the Master Servicer with
respect to such Advances and then (iii) the Special Servicer for any Advances
outstanding to the Special Servicer 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 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 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 reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. 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
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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 "Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11" (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 "Capmark Finance Inc.,
as Master Servicer for Xxxxx Fargo Bank, National Association, as Trustee for
the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11" (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; provided that, the Master Servicer shall deposit an amount equal to two
day's interest for each Interest Reserve Loan (which additional amount the
Depositor shall provide to the Master Servicer on the Closing Date and is equal
to $740,610.46 in the aggregate) into the Interest Reserve 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 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 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
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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;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
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(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 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
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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 ((a) all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, plus (b) the initial deposit deposited
into the Interest Reserve Account on the Closing Date equal to two day's
interest for each Interest Reserve Loan (which additional deposit is equal to
$740,610.46) 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 "Xxxxx Fargo Bank, National Association, as Trustee for the
Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 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,
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the related Serviced Companion Mortgage Loan Custodial Account, the related A/B
Loan 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 IX 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
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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), (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 unreimbursed Additional
Trust Expenses incurred in respect of each related Mortgage Loan arising on or
after the Cut-Off Date) relating to the Mortgage Loans, Serviced Companion
Mortgage Loans or B Notes which are not Specially Serviced Mortgage Loans,
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 fees payable under Section 8.7(a) or 8.7(b),
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 as provided in Section 8.7(a), 50% of any assumption fees as
provided in Section 8.7(b), all assumption fees relating to Specially Serviced
Mortgage Loans, Modification Fees and other fees collected on Specially Serviced
Mortgage Loans, in each case to the extent provided for herein from funds paid
by the applicable Mortgagor and Late Fees 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 and payable to the Master Servicer or the
Trustee in respect of such Specially Serviced Mortgage Loan (which Advance
Interest the Master Servicer shall retain or pay to the Trustee to the extent
provided for in this Agreement) to the extent the Special Servicer is entitled
to such Late Fees and default interest under Section 4.5;
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(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 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" 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;
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(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 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"
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;
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(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate Account, the
amount certified 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-4FL Net Swap Payment or Class A-MFL Net Swap Payment, as
set forth in Section 8.31(b) or Section 8.32(b), 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
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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 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
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necessary for the payment or reimbursement of amounts described in any
one or more of the foregoing clauses;
(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):
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(i) Identification of Workout-Delayed Reimbursement Amounts. If
any Advance made with respect to any Mortgage Loan on or before the
date on which such Mortgage Loan becomes (or, but for the requirement
that the Mortgagor shall have made three consecutive scheduled
payments under its modified terms, would then constitute) a
Rehabilitated Mortgage Loan, together with Advance Interest accrued
thereon, is not, pursuant to the operation of the provisions of
Section 5.2(a)(I), reimbursed to the Person who made such Advance on
or before the date, if any, on which such Mortgage Loan becomes a
Rehabilitated Mortgage Loan, such Advance, together with such Advance
Interest, shall constitute a "Workout-Delayed Reimbursement Amount" to
the extent that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" shall be construed always to mean the related
Advance and any Advance Interest thereon, together with any further
Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of
and conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is
not otherwise entitled to reimbursement and payment of such
Workout-Delayed Reimbursement Amount pursuant to the operation of
Section 5.2(a)(I) above. Subsection (iv) below (subject to the terms
and conditions thereof) authorizes the Master Servicer to abstain from
reimbursing itself (or, if applicable, the Trustee to abstain from
obtaining reimbursement) for Nonrecoverable Advances under certain
circumstances 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
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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
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 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, 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
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(and Advance Interest thereon) with respect to all Mortgage Loans for
any particular Collection Period is less than or equal to such 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 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
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 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.
The reimbursements of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts set forth in clauses (iii) and (iv) above shall take
into account the allocation of amounts described in the last sentence of
the definition of "Liquidation Realized Loss."
None of the Master 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 (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 (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 (or the Trustee) to otherwise be
reimbursed for such Nonrecoverable Advance (and Advance Interest thereon).
Any election by the Master
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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 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 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 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
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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 2007 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: "LaSalle Bank
National Association, as Paying Agent on behalf of Xxxxx Fargo 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-HQ11, 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: "LaSalle Bank
National Association, as Paying Agent on behalf of Xxxxx Fargo 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-HQ11, 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 "Xxxxx Fargo Bank, National Association, as Trustee for the
Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 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.
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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 2007, 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;
(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-4FL Certificateholders and the Class A-MFL Certificateholders)
pursuant to Sections 6.5 and 6.11 and to make distributions to the Class A-4FL
Grantor Trust, in respect of the Class A-4FL Regular Interest, and to the Class
A-MFL Grantor Trust, in respect of the Class A-MFL Regular Interest, with a
credit for the amount of the Class A-4FL Net Swap Payment or the Class A-MFL 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.
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(c) On or before the Closing Date, the Paying Agent shall, and, with
respect to Class A-4FL Net Swap Payments and the Class A-MFL Net Swap Payments,
the Master Servicer shall, establish and maintain separate Floating Rate
Accounts for the benefit of the Class A-4FL Certificateholders and the Class
A-MFL 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-4FL Floating Rate Account"
and the "Master Servicer's Class A-MFL Floating Rate Account", respectively. The
Class A-4FL Floating Rate Account shall (i) at all times be an Eligible Account,
(ii) be entitled: "LaSalle Bank National Association, as Paying Agent on behalf
of Xxxxx Fargo Bank, National Association, as Trustee, in trust for Holders of
the Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11, Floating Rate Account, Class
A-4FL" and "Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank,
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2007-HQ11, Floating Rate Account, Class A-4FL," as applicable and (iii)
relate solely to the Class A-4FL Certificates, and the Paying Agent (and, with
respect to the Master Servicer's Class A-4FL 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: "LaSalle Bank National Association, as Paying Agent on behalf of
Xxxxx Fargo Bank, National Association, as Trustee, in trust for Holders of the
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11, Floating Rate Account, Class A-MFL"
and "Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Trust
2007-HQ11, 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 Paying Agent
shall deposit into the Class A-4FL Floating Rate Account (other than the Master
Servicer's Class A-4FL Floating Rate Account) and the Class A-MFL Floating Rate
Account (other than the Master Servicer's Class A-MFL Floating Rate Account) on
or prior to each Distribution Date an amount equal to those amounts payable
under the related Class A-4FL Regular Interest and Class A-MFL Regular Interest,
respectively (in each case net of any payments to the Swap Counterparty made
pursuant to Section 8.31(b) or Section 8.32(b) hereof) pursuant to Article VI
hereof and shall deposit into the Class A-4FL Floating Rate Account (other than
the Master Servicer's Class A-4FL Floating Rate Account) and the Class A-MFL
Floating Rate Account (other than the Master Servicer's Class A-MFL 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-4FL Floating Rate Account and the Master Servicer's Class A-MFL 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-4FL Floating Rate Account and the Master Servicer's Class A-MFL 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-4FL Regular Interest
or the Class A-MFL Regular Interest pursuant to Article VI hereof that is equal
to the Class A-4FL Net Swap Payments or the Class A-MFL Net Swap Payments, as
applicable, due to the Swap Counterparty under the related Swap Contract.
Amounts in the Class A-4FL Floating Rate Account and the Class A-MFL Floating
Rate Account shall be held uninvested. The Paying Agent shall make withdrawals
from the Class A-4FL Floating Rate Account and the
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Class A-MFL 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-4FL Floating
Rate Account and the Class A-MFL 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-4FL
Certificates and the Class A-MFL 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-4FL Swap
Contract and the Class A-MFL Swap Contract only to the extent such costs and
expenses were incurred in accordance with Section 6.12; provided, that the
Paying Agent shall only be permitted to incur and reimburse itself out of the
Class A-4FL Floating Rate Account and the Class A-MFL 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-4FL
Certificates or the Class A-MFL Certificates, respectively, or has received a
Rating Agency Confirmation (with respect to the Class A-4FL Certificates or the
Class A-MFL Certificates, respectively) from each Rating Agency (the expense of
such confirmation to be paid by the holders of the Class A-4FL Certificates or
the Class A-MFL Certificates, as the case may be); and
(v) to clear and terminate the Class A-4FL Floating Rate Account
and the Class A-MFL Floating Rate Account pursuant to Section 9.1.
(d) Pursuant to Section 8.31(b) or Section 8.32(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-4FL Floating Rate Account or the Master Servicer's Class
A-MFL 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 this Agreement
and 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 "www. xxxxxxxx.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
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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.
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 March 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 Agents, 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 Agents 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
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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.
(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 Agents, 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.
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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-4FL Grantor Trust, the Class A-MFL 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 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-4FL Grantor
Trust, the Class A-MFL 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
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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.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Class A-4FL Net Swap
Payment or Class A-MFL Net Swap Payment, as applicable, that was deemed
distributed by the Paying Agent to the Master Servicer's Class A-4FL Floating
Rate Account or the Master Servicer's Class A-MFL Floating Rate Account on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b) or Section 8.32(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-4FL Net Swap
Payment or Class A-MFL Net
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Swap Payment, as applicable, that was deemed distributed by the Paying Agent to
the Master Servicer's Class A-4FL Floating Rate Account or the Master Servicer's
Class A-MFL Floating Rate Account on the immediately preceding Master Servicer
Remittance Date pursuant to Section 8.31(b) or Section 8.32(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-4FL Certificates or the Class A-MFL Certificates,
distributable to the Class A-4FL Regular Interest or the Class A-MFL 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.
(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 definition 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-4FL Regular Interest
(in the case of the Class A-4FL Certificates), or the Class A-MFL Regular
Interest (in the case of the Class A-MFL 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-4FL Net Swap Payment that
was deemed distributed in respect of the Class A-4FL Regular Interest on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b) and 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), which
shall be distributed in accordance with Section 6.5(b)) 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-3-1 Certificates, Class A-3-2
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-4FL
Regular Interest and Class X Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3-1 Certificates, Class A-3-2 Certificates,
Class A-AB Certificates, Class
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A-4 Certificates and the Class A-4FL 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
(C) to the Holders of the Class X Certificates, the Distributable
Certificate Interest in respect of such Class for such Distribution
Date;
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 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-3-1,
Class A-3-2, Class A-AB and Class A-4 Certificates and the Class A-4FL
Regular Interest: first to the Holders of the Class A-AB Certificates,
the Loan Group 1 Principal Distribution Amount for such Distribution
Date and, after the Certificate Balance of the Class A-1A Certificates
have been reduced to zero, the Loan Group 2 Principal Distribution
Amount for such Distribution Date, until the Aggregate Certificate
Balance of the Class A-AB Certificates has been reduced to the Planned
Principal Balance for such Distribution Date; 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; second upon payment to the Class A-AB Certificates
of the above distribution, 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 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-AB Certificates (in respect of the Planned Principal
Balance) and (solely with respect to the Loan Group 2 Principal
Distribution Amount) Class A-1A Certificates; third upon payment in
full of the Aggregate Certificate Balance of the Class A-1
Certificates, to the Holders of the Class A-2 Certificates, the Loan
Group 1 Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
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has been reduced to zero, the Loan Group 2 Principal Distribution
Amount, until the Aggregate Certificate Balance of the Class A-2
Certificates has been reduced to zero; the portion of the Loan Group 1
Principal Distribution Amount and Loan Group 2 Principal Distribution
Amount distributed hereunder shall be reduced by any portion thereof
distributed to the Holders of the Class A-AB Certificates (in respect
of the Planned Principal Balance), Class A-1 Certificates and (solely
with respect to the Loan Group 2 Principal Distribution Amount) Class
A-1A Certificates; fourth upon payment in full of the Aggregate
Certificate Balance of the Class A-2 Certificates, to the Holders of
the Class A-3-1 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, until the Aggregate Certificate
Balance of the Class A-3-1 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-AB Certificates (in respect of the Planned Principal Balance), Class
A-1 Certificates, Class A-2 Certificates and (solely with respect to
the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates; fifth upon payment in full of the Aggregate Certificate
Balance of the Class A-3-1 Certificates, to the Holders of the Class
A-3-2 Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the Aggregate Certificate Balance of the
Class A-3-2 Certificates has been reduced to zero; the portion of the
Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder shall be reduced by any
portion thereof distributed to the Holders of the Class A-AB
Certificates (in respect of the Planned Principal Balance), Class A-1
Certificates, Class A-2 Certificates, Class A-3-1 and (solely with
respect to the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates; sixth upon payment in full of the Aggregate Certificate
Balance of the Class A-3-2 Certificates, to the Holders of the Class
A-AB 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-AB 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-AB
Certificates (in respect of the Planned Principal Balance), Class A-1
Certificates, Class A-2 Certificates, Class A-3-1 Certificates, Class
A-3-2 Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates; seventh upon
payment in full of the Aggregate Certificate Balance of the Class A-AB
and Class A-3-2 Certificates, to the Holders of the Class A-4
Certificates and the Class A-4FL 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
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Loan Group 2 Principal Distribution Amount, until the Aggregate
Certificate Balances of the Class A-4 Certificates and the Class A-4FL
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-AB
Certificates, Class A-1 Certificates, Class A-2 Certificates, Class
A-3-1 Certificates, Class A-3-2 Certificates and (solely with respect
to the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates; and
(B) to the Holders of the Class A-1A Certificates, the Loan Group
2 Principal Distribution Amount for such Distribution Date and, after
the Certificate Balances of the Class A-4 Certificates and the Class
A-4FL Regular Interest have 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-AB, Class A-1, Class A-2,
Class A-3-1, Class A-3-2, and Class A-4 Certificates and the Class
A-4FL Regular Interest;
(iii) to the Holders of the Class A Senior Certificates (other
than the Class A-4FL Certificates), the Class A-4FL Regular Interest and 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
interest at one-twelfth 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 or Interests for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class
A-4 and Class A-1A Certificates and Class A-4FL Regular Interest, 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 by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class A-M Certificates and the Class A-MFL Regular Interest has 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 interest at
one-twelfth the applicable Pass-Through Rate on such Realized Losses;
(vii) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
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(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, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder), until
the Certificate Balance of the Class A-J Certificates has been reduced to zero;
(ix) to the Holders of the Class A-J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class
A-J Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the
Class C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
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(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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the
Class E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxviii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of the
Class G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
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(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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the
Class J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxxvii) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
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(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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of the
Class N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class
O Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(lii) to the Holders of the Class Q Certificates, Distributable
Certificate Interest 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 interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(lv) to the Holders of the Class S Certificates, Distributable
Certificate Interest for such Distribution Date;
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(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 interest at one-twelfth 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 III Regular
Certificates, the Class A-4FL Regular Interest and the Class A-MFL 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 III Regular Certificates, the Class A-4FL Regular Interest and the
Class A-MFL 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 will be distributed, first, to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB and Class
A-4 Certificates and the Class A-4FL 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-3-1, Class A-3-2, Class A-AB and Class A-4 Certificates and the Class A-4FL
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.
(b) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders, the Class A-4FL
Regular Interest and the Class A-MFL 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-4FL Certificates and the Class A-MFL
Certificates), the Class A-4FL Regular Interest and the Class A-MFL 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) will be pari passu with respect to each other and will
be senior in right to the Class A-J Certificates) 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-4FL Certificates and the Class A-MFL
Certificates), the
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Class A-4FL Regular Interest and Class A-MFL 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) will be pari passu with respect to each other and will be senior
in right to the Class A-J Certificates) 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-4FL
Certificates and the Class A-MFL Certificates), the Class A-4FL Regular Interest
and the Class A-MFL 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;
(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
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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:
(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
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amounts and in the manner as are allocated to the REMIC III Regular Interests
related thereto pursuant to Section 6.6(f). 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-3-1
Certificates, Class A-3-2 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-4FL Regular Interest 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-4FL Regular Interest reduce the interest
distributable to the Class A-4FL Certificates by an equivalent amount. Losses of
principal that reduce the Certificate Balance of the Class A-4FL Regular
Interest reduce the Aggregate Certificate Balance of the Class A-4FL
Certificates by an equivalent amount. Losses of interest allocated to the Class
A-MFL Regular Interest reduce the interest distributable to the Class A-MFL
Certificates by an equivalent amount. Losses of principal that reduce the
Certificate Balance of the Class A-MFL Regular Interest reduce the Aggregate
Certificate Balance of the Class A-MFL Certificates 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.
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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 will be obtained no later than 60 days after
receipt of such notice and an internal valuation will 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 with the definition of "market value" as set
forth in 12 C.F.R. Section. 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 Master Servicer, based on
the Appraisal or internal valuation provided to it by the Special Servicer,
shall calculate any Appraisal Reduction for any Mortgage Loan, B Note or Loan
Pair. The Master Servicer shall calculate or recalculate the Appraisal Reduction
for any Mortgage Loan, B Note and Loan Pair based on updated Appraisals or
internal valuations provided from time to time by the Special Servicer 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.
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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 will 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 L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates), the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest, then entitled to distributions of principal from the Principal
Distribution Amount for such Distribution Date, will 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 on that
Distribution Date, (b) the Base Interest Fraction for the related Principal
Prepayment and that Class 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, will 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
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Premium that is not so distributed to the Holders of such Principal Balance
Certificates, the Class A-4FL Regular Interest or the Class A-MFL Regular
Interest will be distributed to the Holders of the Class X Certificates. For so
long as the Class A-4FL Swap Contract and the Class A-MFL Swap Contract, or any
replacement Swap Contract, are in effect, the Prepayment Premium allocated to
the Class A-4FL Regular Interest and the Class A-MFL Regular Interest shall be
payable to the Swap Counterparty pursuant to the terms of the related Swap
Contract. If the Class A-4FL Swap Contract, the Class A-MFL Swap Contract or any
replacement Swap Contracts are no longer in effect, any Prepayment Premium
allocated to the Class A-4FL Regular Interest or the Class A-MFL Regular
Interest shall be distributed to the Class A-4FL Certificates or the Class A-MFL
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-4FL Net Swap Payments and Class A-MFL Net Swap Payments, that amount specified
by the Paying Agent pursuant to Section 8.31(b) and Section 8.32(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-4FL Floating Rate Account and the
Master Servicer's Class A-MFL 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-4FL Regular Interest and the Class A-MFL Regular Interest, respectively. On
each Distribution Date, the Paying Agent shall distribute the Class A-4FL
Available Funds for such Distribution Date to the Holders of record of the Class
A-4FL Certificates as of the related Record Date in the following amounts: (i)
the Class A-4FL Interest Distribution Amount, (ii) the Class A-4FL Principal
Distribution Amount and (iii) only if the Class A-4FL Swap Contract has been
terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-4FL 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 and (iii) 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. No
Holder of a Class A-4FL Certificate or a Class A-MFL Certificate shall be
entitled to receive any portion of any Prepayment Premium paid on the Class
A-4FL Regular Interest or the Class A-MFL 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-4FL Interest Distribution
Amount for each Class A-4FL Certificate and the Class A-MFL Interest
Distribution Amount for each Class A-MFL Certificate shall equal the
Distributable Certificate Interest Amount for the Class A-4FL Regular Interest
and the Distributable Certificate Interest Amount for the Class A-4FL 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
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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-4FL Certificates and
the Class A-MFL 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.
For as long as a Swap Default or other default or event of termination
has occurred and is continuing, and no replacement swap contract has been
entered into, and a Class A-4FL Certificate or Class A-MFL Certificate is
receiving interest at the fixed Pass-Through Rate, the Class A-4FL Certificates
or Class A-MFL Certificates, as applicable, shall accrue interest at the same
rate, on the same basis and in the same manner as the related Class A-4FL
Regular Interest or Class A-MFL 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-4FL Certificates or the Holders of the Class A-MFL 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-4FL Certificates or 100% of the Class
A-MFL 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-4FL
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Certificates and of the Certificateholders of the Class A-MFL 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-4FL Floating Rate Account or the Class A-MFL
Floating Rate Account and shall be distributed to the holders of the Class A-4FL
Certificates or the holders of the Class A-MFL 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.
As long as the related Swap Contract (or any replacement thereof) is
in effect, each beneficial owner of a Class A-4FL Certificate or a Class A-MFL
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-4FL Grantor Trust or the Class A-MFL Grantor Trust, as applicable, after the
application of funds held in the Class A-4FL Floating Rate Account or the Class
A-MFL 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-4FL Certificates or 100% of the holders of
the Class A-MFL Certificates, as the case may be, or has received a Rating
Agency Confirmation (with respect to the Class A-4FL Certificates or the Class
A-MFL Certificates) from each Rating Agency (the expense of such confirmation to
be paid by the holders of the Class A-4FL Certificates or the Class A-MFL
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 to be available) in the Class A-4FL Grantor Trust or the
Class A-MFL Grantor Trust, as applicable, after the application of funds held in
the Class A-4FL Floating Rate Account or the Class A-MFL Floating Rate Account,
respectively, in accordance with Section 5.3(c).
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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 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 (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II 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 nor 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 nor 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;
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(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 nor 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;
(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 nor the Paying Agent shall
be under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties as Trustee, 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 nor the Paying Agent
shall be charged with knowledge of a Rating Agency Trigger Event or of any
failure by the Master Servicer or 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;
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(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) neither the Trustee, the Custodian nor 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;
(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) neither the Trustee, the Custodian nor the Paying Agent
shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee, the Custodian nor the Paying Agent
shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) neither the Trustee, the Custodian nor the Paying Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement;
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(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.
(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 (i) 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
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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 and (ii) the Trustee 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 to the extent
of information furnished by the Trustee under the caption entitled "TRANSACTION
PARTIES-- The Trustee and the Custodian" and with respect to the Paying Agent,
to the extent of information furnished by the Paying Agent under the caption
"TRANSACTION PARTIES-- The Paying Agent, Certificate Registrar, and
Authenticating Agent" each in the Preliminary Prospectus Supplement and the
Final Prospectus Supplement), 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, each 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
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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 "Prime 1" by Xxxxx'x and whose long-term senior unsecured
debt is at all times rated not less than "A+" by S&P and "Aa3" by Xxxxx'x, 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 S&P and "A2" by Xxxxx'x, 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 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 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
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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
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 and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii), (iv) or (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
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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.
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Principal Balance Certificates then outstanding may for cause upon 30
days' 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
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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.
(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.
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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.
(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
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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.
(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
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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 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
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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 Custodian,
the Certificate Registrar or the Paying Agent, as the case may be, shall have
given the Depositor, the Master Servicer, the Sellers, 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
Sellers, 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;
(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,
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
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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 is set forth in the case
of the Trustee in the first, second and third paragraphs under the caption
entitled "TRANSACTION PARTIES--The Trustee and Custodian-The Trustee", the
second paragraph under the caption entitled "TRANSACTION PARTIES--The Trustee
and Custodian-Duties of the Trustee" and the last five sentences of the first
paragraph under the caption entitled "TRANSACTION PARTIES--The Trustee and
Custodian-The Custodian" and in the case of the Paying Agent, the first three
paragraphs under the "TRANSACTION PARTIES--The Paying Agent, the Certificate
Registrar, and the Authenticating Agent." The Trustee, the Custodian, the
Certificate Registrar or the Paying Agent, as the case may be, shall immediately
notify the Depositor and the Sellers if a claim is made by a third party with
respect to this Section 7.11(c) entitling such person, its directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such person) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Trustee, the 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
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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 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,
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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 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 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 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 be entitled to receive all the compensation payable
to the Special
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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
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 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 Sellers and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
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SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE
PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee 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 the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee 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 the Trustee 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 the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee 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 the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee 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
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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 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 "Baa1" as rated by
Xxxxx'x, if rated by Xxxxx'x, and "A" as rated by S&P, if rated by S&P,
respectively, the Trustee, the Custodian or the Paying
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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.
(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;
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(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 will be listed on the Luxembourg Stock
Exchange or any other stock exchange.
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 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 service in accordance with the Servicing Standard; 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 clause
(x) 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
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Agent, the Operating Adviser, each 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 or (y) that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan and, in the case of an event specified in clause (x) of this subclause (b)
above, the Servicing Transfer Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if 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).
(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-
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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.
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 "BBB" as rated by S&P and "Baa1" as rated by Xxxxx'x,
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 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the
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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, as applicable), such power and authority shall include,
without limitation, the right, subject to the terms hereof, (A) to execute and
deliver, on behalf of the Certificateholders (and in connection with any B Note,
the holder of the B Note and, in connection with any Loan Pair, the holder of
the Serviced Companion Mortgage Loan) and the Trustee, customary consents or
waivers and other instruments and documents (including, without limitation,
estoppel certificates, financing statements, continuation statements, title
endorsements and reports and other documents and instruments necessary to
preserve and maintain the lien on the related Mortgaged Property and related
collateral), (B) to consent to assignments and assumptions or substitutions, and
transfers of interest of any Mortgagor, in each case subject to and in
accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to
collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any
subordinate financings to be secured by any related Mortgaged Property to the
extent that such consent is required pursuant to the terms of the related
Mortgage or which otherwise is required, and, subject to Section 8.7, to consent
to any mezzanine debt to the extent such consent is required pursuant to the
terms of the related Mortgage; (E) to consent to the application of any proceeds
of insurance policies or condemnation awards to the restoration of the related
Mortgaged Property or otherwise and to administer and monitor the application of
such proceeds and awards in accordance with the terms of the Mortgage Loan as
the Master Servicer deems reasonable under the circumstances, (F) to execute and
deliver, on behalf of the Certificateholders (and, if applicable, the holders of
the B Note and Serviced Companion Mortgage Loan) and the Trustee, documents
relating to the management, operation, maintenance, repair, leasing and
marketing of the related Mortgaged Properties, including agreements and requests
by the Mortgagor with respect to modifications of the standards of operation and
management of the Mortgaged Properties or the replacement of asset managers, (G)
to consent to any operation or action under a Mortgage Loan that is contemplated
or permitted under a Mortgage or other documents evidencing or securing the
applicable Mortgage Loan (either as a matter of right or upon satisfaction of
specified conditions), (H) to obtain, release, waive or modify any term other
than a Money Term of a Mortgage Loan and related documents subject to and to the
extent permitted by Section 8.18, (I) to exercise all rights, powers and
privileges granted or provided to the holder of the Mortgage Notes, any Serviced
Companion Mortgage Loan and any B Note under the terms of the Mortgage,
including all rights of consent or approval thereunder, subject to Sections 8.7
and 8.18 of this Agreement, (J) to enter into lease subordination agreements,
non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust (and, if applicable, the holders of the B Note and Serviced Companion
Mortgage Loan) or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect to
the Mortgaged Properties, and (M) hold in accordance with the terms of any
Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing clauses
(A) through (M) are referred to collectively as "Master Servicer Consent
Matters." Notwithstanding the above, the Master Servicer shall have no power to
(i) waive any Prepayment
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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 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 three Business Days to the Special Servicer of
any collections it receives from any Specially Serviced Mortgage Loans, subject
to changes agreed upon from time to time by the Special Servicer and the 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)
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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 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;
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(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 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 immediately upon the realization of such
loss. 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
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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 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
$20,000,000 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 $20,000,000 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.
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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 related Seller shall be to pay an amount equal to such
insufficiency or expense to the extent the related Mortgagor is not required to
pay such amount. Promptly upon receipt of notice of such insufficiency or unpaid
expense, the Master Servicer shall request the related 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 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.
(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 receipt of
the related Servicer Mortgage File, 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
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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 Special Servicer with
respect thereto under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement. The Master Servicer (if the Mortgage Loan is not a
Specially Serviced Mortgage Loan) or the Special Servicer (if the Mortgage Loan
is a Specially Serviced Mortgage Loan) shall use reasonable best efforts
consistent with the Servicing Standard to monitor 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 pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and to
enforce the rights of the Trustee (as holder of the Non-Serviced Mortgage Loans)
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and
the related Non-Serviced Mortgage Loan Intercreditor Agreement. The Master
Servicer (if the Mortgage Loan is not a Specially Serviced Mortgage Loan) or the
Special Servicer (if the Mortgage Loan is a Specially Serviced Mortgage Loan)
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.
(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, the Special 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,
the Special Servicer, and/or the Trustee have duties and obligations under any
such letter agreement, each successor master servicer, successor special
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 parties hereto (A) acknowledge that the Master Servicer has
delegated certain of its obligations and assigned certain of its rights under
this Agreement to the Primary Servicer pursuant to the Primary Servicing
Agreement; and (B) agree: (1) in addition to those obligations specifically
delegated by the Master Servicer to the Primary Servicer under the Primary
Servicing Agreement, the Primary Servicer shall also perform the Master
Servicer's obligations set forth in Section 2.1(d) of this Agreement as such
Section relates to the Mortgage
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Loans serviced by it; (2) in addition to those rights specifically granted by
the Master Servicer to the Primary Servicer under the Primary Servicing
Agreement, those rights set forth in Section 8.24 hereof accruing to the benefit
of the Master Servicer shall also accrue to the benefit of the Primary Servicer;
(3) any indemnification or release from liability set forth in this Agreement
accruing to the benefit of the Master Servicer shall also, to the extent
applicable, benefit the Primary Servicer; and (4) for each notice,
certification, report, schedule, statement or other type of writing that a party
hereto is obligated to deliver to the Master Servicer, such party shall deliver
to the Primary Servicer (to the extent related to the Mortgage Loans serviced by
it) a copy of such notice, certification, report, schedule, statement or other
type of writing at the time and in the same manner that any of the foregoing is
required to be delivered to the Master Servicer. Notwithstanding the provisions
of the Primary Servicing Agreement or any other provisions of this Agreement,
the Master Servicer shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicer, the Certificateholders, the holder of any Serviced
Companion Mortgage Loan and the holder of any B Note for servicing and
administering of the Mortgage Loans and any Serviced Companion Mortgage Loan in
accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans and the
Serviced Companion Mortgage Loans. The Master Servicer or the Primary Servicer
shall supervise, administer, monitor, enforce and oversee the servicing of the
applicable Mortgage Loans by any Sub-Servicer appointed by it. The terms of any
arrangement or agreement between the Master Servicer or the Primary 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 or the Primary Servicer is
terminated in accordance with this Agreement or the Primary Servicing Agreement
(except any sub-servicing agreement (which for the avoidance of doubt does not
include the Primary Servicing Agreement) involving other Mortgage Loans that is
in effect on the Closing Date which shall be terminable only with "cause",
provided that "cause" will be determined in a materially similar manner as
Events of Default are determined with respect to the Master Servicer under
Section 8.28(a)(i) through (ix)). In addition, none of the Trustee, 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 or the Primary Servicer shall pay the costs of
enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any primary servicing agreement or
sub-servicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or the Primary Servicer
or a Sub-Servicer, or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer or the Primary 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 or the Primary Servicing Agreement without diminution of such
obligation or liability by virtue of indemnification from a
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Sub-Servicer and to the same extent and under the same terms and conditions as
if the Master Servicer or the Primary Servicer alone were servicing and
administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master Servicer
and the Primary 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 any decision or recommendation
involving the exercise of the Primary Servicer's discretion as a "lender" under
any loan document with respect to a Mortgage Loan shall be exercised only by the
Primary Servicer and may not be delegated to a sub-servicer, provided, further,
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, Primary Servicer or Special Servicer shall
enter into a sub-servicing agreement with any party that is a Prohibited Party.
The Master Servicer shall enter into the Primary Servicing Agreement
with the Primary Servicer and shall not terminate such agreements except in
accordance with the terms thereof. To the extent consistent with the rights of
the Primary Servicer under this Agreement and the Primary Servicing Agreement,
but not in limitation of any other rights granted to the Primary Servicer in
this Agreement and/or in the Primary Servicing Agreement, the Primary Servicer
shall have all of the rights and obligations of a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) the Primary Servicer's rights and obligations under the Primary
Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
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 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 hereunder and/or under
the Primary Servicing Agreement, without the prior written consent of the
Primary 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, nor is it bound by any provision of the Primary
Servicing Agreement. The Special Servicer hereby acknowledges the delegation of
rights and duties hereunder by the Master Servicer pursuant to the provisions of
the Primary Servicing Agreement.
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(c) Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer (excluding the Primary Servicing Agreement) shall
provide that (i) the failure of the related Sub-Servicer to comply with any of
the requirements of Article XIII of this Agreement, (ii) the failure of the
related Sub-Servicer to comply with any requirements to deliver any items
required by Items 1122 and 1123 of Regulation AB under any other pooling and
servicing agreement relating to any commercial mortgage loan securitization
similar to the Trust or (iii) any Sub-Servicer who is deemed to be 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 upon the occurrence of which either the Master Servicer, the
Primary Servicer, the Special Servicer or the Depositor shall immediately
terminate the related 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
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
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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.
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 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 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
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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 S&P and "A2" by
Xxxxx'x, 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 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,
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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 CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor (or other obligor) pursuant to the provisions of any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note (other than a Specially Serviced
Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits, subject
to any conditions set forth in the Mortgage Loan documents, the assignment of
the related Mortgaged Property to, and assumption of such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note by, another Person, the Master
Servicer shall obtain relevant information for purposes of evaluating such
request and the Special Servicer shall have the right to review such information
and consent to such request in accordance with this Section 8.7(a). For the
purpose of the foregoing sentence, the term 'expressly permits' shall include
outright permission to assign, permission to assign upon satisfaction of certain
conditions or prohibition against assignment except upon the satisfaction of
stated conditions. If the Master Servicer recommends to approve such assignment,
the Master Servicer shall provide to the Special Servicer (and solely with
respect to any A/B Mortgage Loan, the holder of the B Note) a copy of such
recommendation and the materials upon which such recommendation is based (which
information shall consist of the information to be included in the Assignment
and Assumption Submission to the Special Servicer, in the form attached hereto
as Exhibit U) and (A) the Special Servicer shall have the right hereunder to
grant or withhold consent to any such request for such assignment and assumption
in accordance with the terms of the Mortgage Loan, Serviced Companion Mortgage
Loan or B Note and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within ten (10) Business Days
following the Master Servicer's delivery of the recommendation set forth above
and the complete Assignment and Assumption Submission to the Special Servicer on
which the recommendation is based, of its determination to grant or withhold
such consent shall be deemed
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to constitute a grant of such consent and (C) the Master Servicer shall not
permit any such assignment or assumption unless (i) it has received the written
consent of the Special Servicer or such consent has been deemed to have been
granted as set forth in the preceding clause (B) and (ii) with respect to any
A/B Mortgage Loan, the Master Servicer has obtained the approval of the holder
of the related B Note, to the extent provided for in the related Intercreditor
Agreement, and in accordance with any procedures therefor set forth in Section
9.40. The Special Servicer hereby acknowledges the delegation of rights and
duties hereunder by the Master Servicer pursuant to the provisions of the
Primary Servicing Agreements. If the Special Servicer withholds consent pursuant
to the provisions of this Agreement, it shall provide the Master Servicer or the
applicable Primary Servicer with a written statement and a verbal explanation as
to its reasoning and analysis. Upon consent or deemed consent by the Special
Servicer to such proposed assignment and assumption, the Master Servicer shall
process such request of the related Mortgagor (or other obligor) and shall be
authorized to enter into an assignment and assumption or substitution agreement
with the Person to whom the related Mortgaged Property has been or is proposed
to be conveyed, and/or release the original Mortgagor from liability under the
related Mortgage Loan, Serviced Companion Mortgage Loan or B Note and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Master Servicer shall
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or create any lien on a Mortgaged Property that
is senior to, or on parity with, the lien of the related Mortgage. To the extent
permitted by applicable law, the Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor (or other obligor) is in conformity to the terms of the related
Mortgage Loan and, if applicable, B Note or Serviced Companion Mortgage Loan
documents. In making its recommendation, the Master Servicer shall evaluate such
conformity in accordance with the Servicing Standard. The Master Servicer shall
notify the Trustee, the Paying Agent and the Special Servicer of any assignment
and assumption or substitution agreement executed pursuant to this Section
8.7(a). The Master Servicer shall be entitled to (as additional servicing
compensation) 100% of any assumption application fees and 50% of any assumption
fee collected from a Mortgagor in connection with an assignment and assumption
or substitution of a non-Specially Serviced Mortgage Loan executed pursuant to
this Section 8.7(a) and the Special Servicer shall be entitled to (as additional
special servicing compensation) the other 50% of such fee relating to the
non-Specially Serviced Mortgage Loans (except with respect to the Mortgage Loans
with respect to which such Special Servicer's consent was not required in
connection therewith or with respect to any assignment and assumption or
substitution that is "expressly permitted" pursuant to the terms of the related
Mortgage Loan in which instances the Master Servicer shall be entitled to 100%
of the fees in connection therewith); provided that the Master Servicer shall
obtain the Special Servicer's consent in connection with any substitution of
collateral for or in respect of a non-Specially Serviced Mortgage Loan;
provided, further, that any such fees payable to a Master Servicer pursuant to
this paragraph shall be divided between such Master Servicer and any related
Primary Servicer as set forth in the applicable Primary Servicing Agreement.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicer with respect to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing
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Requests as Category 1 Requests and grants the Primary Servicer certain
authority to evaluate and process such requests in accordance with this
Agreement, the Primary Servicing Agreement and applicable Mortgage Loan
documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement provides for the determination of materiality of such
condition, term or provision requiring approval or consent by the Master
Servicer or the Primary Servicer and the referral of such condition, term or
provision to a Special Servicer for consent in accordance with the terms of the
Primary Servicing Agreement upon a determination of materiality. The Special
Servicer acknowledges such provisions. Nothing in this Agreement, however, shall
grant the Primary Servicer greater authority, discretion or delegated rights
over Post Closing Requests than are set forth in the Primary Servicing
Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability, and each of them shall be indemnified by the Trust for any liability
to the Mortgagor or the proposed assignee, for any delay in responding to
requests for assumption, if the same shall occur as a result of the failure of
the Rating Agencies, or any of them, to respond to such request in a reasonable
period of time.
In addition, the Special Servicer acknowledges that the Master
Servicer has delegated certain tasks, rights and obligations to the Primary
Servicer with respect to enforcement of due on sale clauses, assumption
agreements and due on encumbrance clauses pursuant to Section 8.4 of this
Agreement. Such Primary Servicing Agreement grants the Primary Servicer certain
authority to evaluate and process certain requests with respect thereto in
accordance with this Agreement or the Primary Servicing Agreement and the
applicable Mortgage Loan documents; provided however, that no such authority to
evaluate and process certain requests shall be in contravention of the
immediately preceding paragraph. Such Primary Servicer is not required to obtain
the consent of the Master Servicer or the Special Servicer with respect to
requests for transfers that are expressly permitted pursuant to the applicable
Mortgage Loan documents. With respect to other requests specified in the Primary
Servicing Agreement that require the approval of the Special Servicer and
subject to the terms and provisions of the Primary Servicing Agreement, the
Primary Servicer may forward its recommendation directly to the Special Servicer
(with a copy to the Master Servicer) or it may forward its recommendation with
respect to such request to the Master Servicer, in which case the Master
Servicer shall use reasonable efforts to forward such recommendation to the
Special Servicer within five (5) Business Days of the Master Servicer's receipt
thereof. In either case, after such delivery to Special Servicer, the Special
Servicer shall inform the Master Servicer and the Primary Servicer of its
decision on or prior to the date on which the Special Servicer's time to respond
has lapsed, which shall be within five (5) Business Days after the Special
Servicer's receipt of the Primary Servicer's recommendation (together with any
documents necessary to evaluate such request as expressly required to be
delivered to the Special Servicer pursuant to the terms of this Agreement or the
Primary Servicing Agreement, as applicable).
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan or a
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Non-Serviced Mortgage Loan contains a provision in the nature of a "due-on-sale"
clause, which by its terms (i) provides that such Mortgage Loan shall (or may at
the mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property or ownership interest in the
related Mortgagor, or (ii) provides that such Mortgage Loan may not be assumed,
or ownership interests in the related Mortgagor may not be transferred, without
the consent of the related mortgagee in connection with any such sale or other
transfer, then, the Master Servicer shall review and make a determination to
either (i) enforce such due-on-sale clause or (ii) if in the best economic
interest of the Trust, waive the effect of such provision, such waiver to be
processed in the same manner as in Section 8.7(a) (including the Special
Servicer consent provisions); provided, however, that if the Principal Balance
of such Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or exceeds 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 pool, then prior to waiving the effect of
such provision, the Master Servicer shall obtain Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver. In connection with the request for such Rating Agency Confirmation,
the Master Servicer shall prepare and deliver to the Rating Agencies a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Master Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, Paying Agent
and the Trustee, and the Master Servicer shall promptly thereafter forward such
documents to the Rating Agencies. The Special Servicer and the Master Servicer
shall each be entitled to (as additional compensation) 50% of any fee collected
from a Mortgagor in connection with granting or withholding such consent (other
than any such fee payable in connection with any Non-Serviced Mortgage Loan)
(except that the Master Servicer shall be entitled to 100% of any application
fee and of such fee in connection with an assignment and assumption that is
expressly permitted pursuant to the terms of the related Mortgage Loan,
provided, further, that such fee may be further divided pursuant to the
applicable Primary Servicing Agreement).
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 the Mortgagor to pay the reasonable costs and expenses associated
with the defeasance or assumption of a Mortgage Loan 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, the related
Seller has covenanted and agreed 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. Promptly upon receipt of notice of such insufficiency, the
Master Servicer or the Special Servicer, as applicable, shall request the
related Seller to make such payment by deposit to the Certificate Account. The
Master Servicer may not waive such payment by the Mortgagor and shall use its
reasonable efforts to collect such amounts from the Mortgagor to the extent the
related mortgage loan documents require the related Mortgagor to pay such
amounts.
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(c) The Master Servicer shall have the right to consent to any
transfers of an interest of a Mortgagor, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, including any consent to transfer to any subsidiary or affiliate
of Mortgagor or to a person acquiring less than a majority interest in the
Mortgagor; provided, however, that if (i) the Principal Balance of such Mortgage
Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or exceeds 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 pool, and (ii) the transfer is of an
interest in the Mortgagor greater than 49%, then prior to consenting, the Master
Servicer shall obtain a Rating Agency Confirmation regarding such consent, the
costs of which to be payable by the related Mortgagor to the extent provided for
in the Mortgage Loan documents. The Master Servicer shall be entitled to collect
and retain from Mortgagors any customary fees in connection with such transfers
of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (b)) for such assignments and assumptions
agreements. Upon the closing of the transactions contemplated by such documents,
the Master Servicer or the Special Servicer, as the case may be, shall cause the
originals of the assignment and assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Loan to be delivered to the
Trustee except to the extent such documents have been submitted to the recording
office, in which event the Master Servicer shall promptly deliver copies of such
documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan, a Non-Serviced Mortgage Loan) which contains a provision in the nature of
a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, the following
paragraph and Section 8.18 hereof. The Master Servicer shall not waive the
effect of such provision without first obtaining Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver and complying with the provisions of the next succeeding paragraph;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the
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Mortgage Loans held by the Trust, has a Principal Balance of more than
$20,000,000 or is one of the 10 largest Mortgage Loans based on Principal
Balance or (y) has a Loan-to-Value Ratio (which includes the indebtedness to be
secured by such additional lien or other encumbrance and any other loans secured
by the related Mortgaged Property or interests in the related Mortgagor) that is
greater than or equal to 85% or a Debt Service Coverage Ratio (which includes
debt service on the indebtedness to be secured by such additional lien or other
encumbrance and any other loans secured by the related Mortgaged Property or
interests in the related Mortgagor) that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in the
event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) the Special Servicer shall have the right hereunder
to grant or withhold consent to any such request in accordance with the terms of
the Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within five (5) Business Days
following the Master Servicer's delivery of the recommendation set forth above
and the complete Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Servicer on which the recommendation is based,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not permit
any such waiver unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as set forth in
the preceding sentence. If the Special Servicer withholds consent pursuant to
the foregoing provisions, it shall provide the Master Servicer with a written
statement and a verbal explanation as to its reasoning and analysis. Upon
consent or deemed consent by the Special Servicer to such proposed waiver, the
Master Servicer shall process such request of the related Mortgagor subject to
the other requirements set forth above.
Notwithstanding anything to the contrary contained in this Section 8.7
(except with respect to the requirement to obtain a Rating Agency Confirmation
as provided herein) that requires the consent of the Master Servicer or the
Special Servicer, as applicable, any such consent with respect to any A/B
Mortgage Loan or any Loan Pair shall be obtained or withheld in accordance with
the related Intercreditor Agreement or the related Loan Pair Intercreditor
Agreement and within the time periods specified 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
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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 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, 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
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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 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 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
and Additional Trust Expenses incurred in respect of the related Mortgage Loan),
Modification Fees, forbearance fees, Late Fees (net of Advance Interest and
Additional Trust Expenses incurred in respect of the related Mortgage Loan)
(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 (i) 50% of any assumption fees relating to
Mortgage Loans
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which are not Specially Serviced Mortgage Loans that require Special Servicer
approval or 100% of any assumption fees relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans for which with respect to the assignment,
assumption or substitution (a) the consent of the Special Servicer was not
required or (b) is "expressly permitted" pursuant to the terms of the related
Mortgage Loan, as payable under Section 8.7(a) or 8.7(d), (ii) 100% of
application fees, default interest (net of the default interest used to pay
Advance Interest, as set forth above and Additional Trust Expenses incurred in
respect of the related Mortgage Loan), forbearance fees, Late Fees (net of any
amount used to pay Advance Interest and Additional Trust Expenses incurred in
respect of the related Mortgage Loan) and Modification Fees on Mortgage Loans
that are not Specially Serviced Mortgage Loans, as provided in Section 8.18
hereof; and (iii) 100% of any defeasance, modification or extension fees
collected from the related Mortgagor in connection with the extension of the
Maturity Date of any Mortgage Loan as provided in Section 8.18; provided,
however, that the Master Servicer shall not be entitled to any such fees in
connection with any Specially Serviced Mortgage Loans, any Non-Serviced Mortgage
Loan or, to the extent set forth in the related Intercreditor Agreement, the
Yearling Green A/B Mortgage Loan or the Hampton Inn-Cranberry Township A/B
Mortgage Loan. 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
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder. Notwithstanding anything to the contrary
contained in this paragraph, the Master Servicer shall obtain the Special
Servicer's consent in connection with any substitution of collateral for or in
respect of a non-Specially Serviced Mortgage Loan and the Master Servicer shall
be entitled to 100% of the fees in connection therewith.
(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
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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 notify the Trustee and the Paying Agent
on or before the Closing Date of the initial location of the applicable
Certificate Accounts and, promptly following any change in location of any
Certificate Account, the new location thereof. In addition, the Master Servicer
shall notify the holder of each Serviced Companion Loan promptly following any
change in location of the Serviced Companion Loan Custodial Account, the new
location thereof.
(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
(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
April 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 April 2007; (iv) a Loan Set-Up File (with
respect to the initial Distribution Date only) not later than the Report Date in
March 2007; (v) a Loan
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Periodic Update File not later than each Report Date commencing in March 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
April 2007; (vii) a Delinquent Loan Status Report on each Report Date,
commencing in April 2007; (viii) an Historical Loan Modification Report not
later than each Report Date, commencing in April 2007, a Loan Level Reserve
Report not later than each Report Date, commencing in April 2007; (x) an REO
Status Report on each Report Date, commencing in April 2007; and (xi) a Total
Loan Report not later than each Report Date, commencing in April 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.
(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 delivers a notice of drawing 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, within five (5) Business Days following its
receipt of the proceeds of such drawing, 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 entitled the Master Servicer to
make such drawing.
(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 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.
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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 in the quarter ending
on June 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 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), based on the
most recently available year-end financial 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
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 Agents, 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 Primary Servicing
Agreement) shall electronically deliver the CMSA Operating Statement
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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, any 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 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 Sellers, the Placement Agents,
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), 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.
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(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 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
Sellers, 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-HQ11 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."
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(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 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 Agents, 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 Agents, 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
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Agencies, the Trustee, the Paying Agent, the Placement Agents 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 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 Agents, 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.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard
may agree to any modification, waiver, amendment or consent of or relating to
any term other than a Money Term of a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that is not a Specially Serviced Mortgage Loan (such
terms to include, without limitation, Master Servicer Consent Matters set forth
in Section 8.3(a) hereof), provided that such amendment would not result in an
Adverse REMIC Event; and provided, further that if any consent relates to a
release of a letter of credit relating to any Mortgage Loan (other than letters
of credit or portions thereof released upon satisfaction of conditions specified
in the related agreements), then (i) the Master Servicer shall notify the
Special Servicer of any Mortgagor's request to release such letter of credit
which the Master Servicer recommends to release, and (ii) if the terms of the
related Mortgage Loan do not require the Master Servicer to approve such
release,
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then the Special Servicer shall within ten (10) Business Days provide
notice to the Master Servicer as to whether the Master Servicer should approve
the release (and the failure of the Special Servicer to give the Master Servicer
such notice shall automatically be deemed to be an approval by the Special
Servicer that the Master Servicer should grant such release). Notwithstanding
the preceding sentence, if the Master Servicer recommends to approve such
modification, waiver, amendment or consent which is not a Master Servicer
Consent Matter (including, without limitation, any waiver of any requirement
that the Mortgagor post additional reserves or a letter of credit upon the
failure of the Mortgagor to satisfy conditions specified in the Mortgage Loan
documents), the Master Servicer shall provide to the Special Servicer a copy of
the Master Servicer's recommendation and the relevant information obtained or
prepared by the Master Servicer in connection therewith; provided, that (A) the
Special Servicer shall have the right hereunder to grant or withhold consent to
any such proposed modification, waiver, amendment or consent, and such consent
of the Special Servicer shall not be unreasonably withheld, consistent with the
Servicing Standard, (B) failure of the Special Servicer to notify the Master
Servicer, within five Business Days following the Master Servicer's delivery of
the recommendation set forth above, of its determination to grant or withhold
such consent shall be deemed to constitute a grant of such consent and (C) the
Master Servicer shall not enter into any such proposed modification, waiver,
amendment or consent unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as set forth
above. Notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be required to obtain or request the consent of the Special
Servicer in connection with any modification, waiver or amendment, or granting
its consent to transactions, under one or more of the Mortgage Loans that in
each case the Master Servicer has determined (in accordance with the Servicing
Standard) is immaterial. In any event, the Master Servicer shall promptly notify
the Special Servicer of any material modification, waiver, amendment or consent
executed by the Master Servicer pursuant to this Section 8.18(a)(i) and provide
to the Special Servicer a copy thereof. Notwithstanding the foregoing provisions
of this Section 8.18, if the Mortgage Loan documents require a Mortgagor to pay
a fee for an assumption, modification, waiver, amendment or consent that would
be due or partially due to the Special Servicer, then the Master Servicer shall
not waive the portion of such fee due to the Special Servicer without the
Special Servicer's approval.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
applicable Primary Servicer with respects to Post Closing Requests (as defined
in the applicable Primary Servicing Agreement) pursuant to Section 8.4 of this
Agreement. The Primary Servicing Agreement classifies certain Post Closing
Requests as Category 1 Requests and grants the applicable Primary Servicer
certain authority to evaluate and process such requests in accordance with this
Agreement, the applicable Primary Servicing Agreement and applicable Mortgage
Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the applicable
Primary Servicing Agreement provides for determination of materiality of such
condition, term or provision requiring approval or consent by the Master
Servicer or the applicable Primary Servicer and the referral of such condition,
term or provision to the Special Servicer for consent in accordance with the
terms of the applicable
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Primary Servicing Agreement upon a determination of materiality. The Special
Servicer acknowledges such provisions. Nothing in this Agreement, however, shall
grant the applicable Primary Servicer greater authority, discretion or delegated
rights over Post Closing Requests than are set forth in the applicable Primary
Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and Serviced Companion Mortgage Loan (as a
collective whole) on a net present value basis than liquidation of such Mortgage
Loan and the Mortgagor has obtained, prior to the maturity date of such Mortgage
Loan, an executed written commitment (subject only to satisfaction of conditions
set forth therein) for refinancing of the Mortgage Loan or purchase of the
related Mortgaged Property. The Master Servicer shall process all such
extensions and shall be entitled to (as additional servicing compensation) 100%
of any extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver,
amendment or collateral release, that such Mortgagor pay to the Master Servicer
a reasonable and customary modification fee to the extent permitted by law;
provided that the collection of such fee shall not be permitted if collection of
such fee would cause a "significant modification" (within the meaning of
Treasury Regulation Section 1.860G-2(b)) of the Mortgage Loan. The Master
Servicer shall be entitled to (as additional servicing compensation) 100% of any
Modification Fees collected from a Mortgagor in connection with a consent,
waiver, modification or amendment of a non-Specially Serviced Mortgage Loan
executed or granted pursuant to Section 8.3 or this Section 8.18. The Master
Servicer may charge the Mortgagor for any costs and expenses (including
attorneys' fees and rating agency fees) incurred by the Master Servicer or the
Special Servicer (and any amounts incurred by the Special Servicer shall be
reimbursed to the Special Servicer) in connection with any request for a
modification, waiver or amendment. The Master Servicer agrees to use its best
reasonable efforts in accordance with the Servicing Standard to collect such
costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of the Master Servicer to cause such costs and expenses (but not
including any modification fee), and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid
by the Mortgagor). If the Master Servicer believes, prior to a closing of the
transaction, that the costs and expenses (including attorneys' fees) to be
incurred by the Master Servicer in connection with any request for a
modification, waiver or amendment will result in a payment or reimbursement by
the Trust, then the Master Servicer shall notify the Special Servicer and
receive the Special Servicer's prior consent. However, if an expense turns out
not to be collected after the exercise of best reasonable efforts as set forth
above, then the Master Servicer may nonetheless take reimbursement from the
Trust. Notwithstanding any contrary provision of this Agreement, however, (a)
the Master Servicer shall not agree to a modification, waiver or amendment if
the related Mortgagor has not paid or caused to have been paid any and all costs
and expenses
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(including attorneys' fees and rating agency fees) incurred by the Master
Servicer or the Special Servicer in connection with such modification, waiver or
amendment to the extent permitted by the terms of the Mortgage Loan documents
and (b) subject to applicable law and the related Mortgage Loan documents, the
Master Servicer shall not provide a consent if the related Mortgagor has not
paid or caused to have been paid any and all costs and expenses (including
attorneys' fees and rating agency fees) incurred by the Master Servicer or the
Special Servicer in connection with such consent. In no event shall either the
Master Servicer or the Primary Servicer be responsible for reimbursing or paying
any independent costs or expenses incurred by the Special Servicer in connection
with a request for a modification, waiver or amendment of a Mortgage Loan unless
the Special Servicer has first notified the Master Servicer or Primary Servicer,
as applicable, of its intent to incur such cost or expense and the Master
Servicer or Primary Servicer, as applicable, has agreed to pay (or cause to be
paid) such cost or expense.
(c) The Master Servicer shall notify the Trustee, the Paying Agent,
the Operating Adviser and the Special Servicer of any modification, waiver or
amendment of any term of any Mortgage Loan permitted by it under this Section
and the date thereof, and shall deliver to the Trustee for deposit in the
related Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly following the execution thereof
except to the extent such documents have been submitted to the applicable
recording office, in which event the Master Servicer shall promptly deliver
copies of such documents to the Trustee. The Master Servicer shall not agree to
any modification, waiver, or amendment of any Money Term of a Mortgage Loan or
any term of a Specially Serviced Mortgage Loan. The Master Servicer shall notify
the holder of the B Note and the Serviced Companion Mortgage Loan of any
modification of the monthly payments of an A/B Mortgage Loan or a Loan Pair, as
the case may be, and such monthly payments shall be allocated in accordance with
the related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $200,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement.
(e) Neither the Master Servicer nor any Primary Servicer will be
required to obtain a Rating Agency Confirmation in connection with this
Agreement unless the terms of this Agreement specifically requires the Master
Servicer to do so, and if so required by the terms of this Agreement, the Master
Servicer and any Primary Servicer shall not be permitted to waive (i) the Rating
Agency Confirmation requirement or (ii) the obligation of a Mortgagor to pay all
or any portion of any fee payable in connection with obtaining the Rating Agency
Confirmation.
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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 corporation under the laws of the state of California, and
shall be and thereafter remain, in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to
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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;
(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.
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(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 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
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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 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.
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(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
Agents, 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, 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.
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(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)
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
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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
the conduct of the Trustee, the Paying Agent or the Special Servicer, as the
case may be, was (x) not culpable or (y) 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, 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)
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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 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.
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 Depositor, the Trustee, 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 Special Servicer, the
Trustee, 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
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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 or that the Master Servicer
did not act with willful misfeasance, bad faith or negligence.
(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) The 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
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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 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 each of the Class A-4FL
Grantor Trust, the Class A-MFL Grantor Trust and the Excess Interest Grantor
Trust created hereby 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 the Class A-4FL Grantor Trust, the Class A-MFL Grantor
Trust or the Excess Interest Grantor Trust to take any action that could (i)
endanger its status as a grantor trust or (ii) result in the imposition of any
tax upon the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust or the
Excess Interest Grantor Trust unless the Trustee shall have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such tax. The Master 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
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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), (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
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,
which, other than with respect to any payments made to the Swap Counterparty
pursuant to Section 8.31 or Section 8.32, continues unremedied until 11:00 a.m.
on the Distribution Date; 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
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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) Reserved; 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, 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 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 the Master Servicer obtain 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; 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 solely 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
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Primary Servicing Default and (b) the Master Servicer's 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 Capmark Finance Inc. shall have the right to terminate the
Primary Servicer and assume the Primary Servicer's servicing obligations under
the Primary Servicing Agreement or elect that the successor Master Servicer,
upon its succession, enter into a primary servicing or sub-servicing agreement
with Capmark Finance Inc. with respect to all Mortgage Loans including those 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 such agreement shall be substantially in the form of Exhibit G-1
hereto (but as if Capmark Finance Inc. were the Primary Servicer or Sub-Servicer
thereunder and with applicable servicing fees and excess fees as specified on
the Mortgage Loan Schedule); and, in the case of an agreement in the form of
Exhibit G-1, thereupon Capmark Finance Inc. shall be deemed to have been granted
the rights and deemed to have assumed the obligations granted to or imposed on
the "Primary Servicer" hereunder as to such Mortgage Loans (and under the
Primary Servicing Agreement). For purposes of the preceding sentence, a "Primary
Servicing Default" means an "event of default" of the Primary Servicer under the
Primary Servicing Agreement of Principal Global Investors, LLC. If the Master
Servicer is terminated based upon an Event of Default set forth in clause (i)
(as to the obligation to make P&I Advances), (v), (vi) or (x) of Section
8.28(a), then the Master Servicer shall have the right to enter into a primary
servicing agreement with the successor master servicer with respect to all
Mortgage Loans that are not then subject to the Primary Servicing Agreement, so
long as the terminated Master Servicer is on S&P's Select Servicer List as a
U.S. Commercial Mortgage Master Servicer.
(c) Reserved. [Only Applicable When Not Rated By Xxxxx'x.]
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
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any rights relating to indemnification, unpaid servicing compensation or
unreimbursed Advances and related interest or, if the terminated Master Servicer
is Capmark Finance Inc., its rights to the Excess Servicing Fee); provided that
in no event shall the 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), (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.
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(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 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 Capmark Finance Inc. 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-4FL SWAP CONTRACT.
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(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-4FL Swap
Contract in the name of the Trust. Each of the representations, undertakings and
agreements in the Class A-4FL 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-4FL Swap Contract,
including the Credit Support Annex (as defined in the Class A-4FL 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-4FL 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-4FL Net Swap Payment, if any, due to the Swap Counterparty
under the Class A-4FL Swap Contract, based upon the projected payment that will
be payable on the Class A-4FL Regular Interest pursuant to the priorities set
forth in Article VI hereof and the Pass-Through Rate of the Class A-4FL Regular
Interest and the Class A-4FL Certificates and the amount of any Prepayment
Premiums payable on the Class A-4FL 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-4FL 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 Class A-4FL Net Swap Payment to
the Master Servicer's Class A-4FL Floating Rate Account. Accordingly, the Master
Servicer shall withhold an amount equal to the Class A-4FL 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 this Agreement and the
Class A-4FL Swap Contract.
(c) Reserved.
(d) Promptly upon receipt of any payment or other receipt in respect
of the Class A-4FL Regular Interest or the Class A-4FL Swap Contract, the Paying
Agent shall deposit the same into the Class A-4FL Floating Rate Account.
(e) Reserved.
(f) If the Swap Counterparty is required to post collateral pursuant
to the Class A-4FL Swap Contract, the Paying Agent shall establish an account,
which shall be an Eligible Account (the "Class A-4FL 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-4FL Swap Contract) of the Class A-4FL Swap Contract into the Class A-4FL
Swap Counterparty Collateral Account. The only permitted withdrawal from or
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application of funds on deposit in, or otherwise to the credit of, the Class
A-4FL Swap Counterparty Collateral Account shall be (i) for application to
obligations of the Swap Counterparty under the Class A-4FL 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-4FL Swap Contract. The Paying Agent agrees to
give the Swap Counterparty prompt notice if it obtains knowledge that the Class
A-4FL Swap Counterparty Collateral Account or any funds on deposit therein or
otherwise to the credit of the Class A-4FL 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-4FL Swap
Counterparty Collateral Account shall be applied as contemplated in the Class
A-4FL Swap Contract. Subject to the terms of the Class A-4FL Swap Contract,
proceeds of liquidation of any Class A-4FL Swap Contract collateral (if the
Class A-4FL 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-4FL 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-4FL Swap Contract and shall
remit such amount to the holders of the Class A-4FL Certificates as part of the
Class A-4FL 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-4FL Regular Interest which is equal to the net swap payment due to the Swap
Counterparty pursuant to the Swap Contract (the "Class A-4FL Net Swap Payment").
(h) In connection with any amendment to the Class A-4FL 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-4FL 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
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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 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 Class A-MFL 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 Class
A-MFL 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 Class A-MFL Net Swap
Payment to the Master Servicer's Class A-MFL Floating Rate Account. Accordingly,
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 this
Agreement and 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 "Class 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
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Class A-MFL Swap Contract becomes subject to early termination or upon default
by the Swap Counterparty) shall be deposited in the Class A-MFL 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-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 "Class 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.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS 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
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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 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 any 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
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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 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 S&P and "A2" as
rated by Xxxxx'x, 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
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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 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 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,
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inspections, at its own expense, 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.
(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
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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, 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.
(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 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
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(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or
may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership interest
in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not
be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 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 pool, then prior
to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmation regarding such waiver. In connection with the request
for such consent, the Special Servicer shall prepare and deliver to the Rating
Agencies a memorandum outlining its analysis and recommendation in accordance
with the Servicing Standard, together with copies of all relevant documentation.
The Special Servicer shall also prepare and provide the Rating Agencies with
such memorandum and documentation for all transfer and assumption consents
granted for Mortgage Loans below the threshold set forth above (and, in the case
of encumbrances, the threshold set forth in Section 9.5(i)), but for which the
Special Servicer's decision will be sufficient and a Rating Agency Confirmation
is not required. As to any Mortgage Loan that is not a Specially Serviced
Mortgage Loan and contains a provision in the nature of a "due-on-sale" clause,
the Special Servicer shall have the rights and duties set forth in Section
8.7(b). The Special Servicer shall be entitled to 100% of all assumption fees in
connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is also
authorized to take or enter into an assignment and assumption agreement from or
with the Person to whom such property has been or is about to be conveyed,
and/or to release the original Mortgagor from liability upon the Specially
Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon;
provided, that except as otherwise permitted by Section 9.5(c), any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall,
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for all purposes, be considered a part of such Mortgage File to the same extent
as all other documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Sections 9.39 and 9.40, and
the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
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 Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would result in a
recovery that would equal or exceed the recovery, from liquidation, on the
Specially Serviced Mortgage Loan to Certificateholders, the holder of the
related Serviced Companion Mortgage Loan and the holder of the related B Note
(as a collective whole) on a net present value basis (the relevant discounting
of amounts that will be distributable to Certificateholders, the holder of the
related Serviced Companion Mortgage Loan and the holder of the related B Note
(as a collective whole) to be performed at the related Mortgage Rate or such
other discount rate reasonably assigned by the Special Servicer in accordance
with the Servicing Standard that is no less than the Mortgage Rate (or, in the
case of an A/B Mortgage Loan, such discounting to be performed at a rate no less
than the weighted average of the Mortgage Rate and the stated mortgage rate on
the B Note)), (C) such modification, waiver or amendment would not cause an
Adverse REMIC Event (including with respect to any securities evidencing
interests in any A Note or any B Note) to occur or adversely affect the tax
status of the B Note Trust, and (D) if notice to the Operating Adviser of such
modification, waiver or amendment is required pursuant to Section 9.39, the
Special Servicer has made such notice. The Special Servicer, with respect to any
B Note and any Serviced Companion Mortgage Loan that is a Specially Serviced
Mortgage Loan, shall notify the holder of the B Note and the Serviced Companion
Mortgage Loan, as applicable, of any modification of the monthly payments of an
A/B Mortgage Loan or a Loan Pair, as the case may be, and such monthly payments
shall be allocated in accordance with the related Intercreditor Agreement or
Loan Pair Intercreditor Agreement, as applicable.
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In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged
Property covered by a group secured creditor impaired property environmental
insurance policy for more than five years beyond such Mortgage Loan's Maturity
Date unless a new Phase I Environmental Report indicates that there is no
environmental condition or the Mortgagor obtains, at its expense, an extension
of such policy on the same terms and conditions to cover the period through five
years past the extended Maturity Date, provided that, (i) if such Mortgage Loan
is secured by a ground lease, the Special Servicer shall give due consideration
to the remaining term of the ground lease and (ii) in no case shall the Maturity
Date of any such Mortgage Loan be extended past a date that is two years prior
to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced
by an Officer's Certificate certifying the information in the proviso to the
first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust, the holder of any
Serviced Companion Mortgage Loan or the holder of any B Note in such collateral
would be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to such substitution or addition of
collateral (or such arrangement for possession, care or protection) shall obtain
the prior written consent of the Trustee with respect thereto (which consent
shall not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense. Notwithstanding the foregoing, the Special Servicer will
not permit a Mortgagor to substitute collateral for any portion of the Mortgaged
Property pursuant to Section 9.5(c) unless it shall have received a Rating
Agency Confirmation in connection therewith, the costs of which to be payable by
the related Mortgagor to the extent provided for in the Mortgage Loan documents.
If the Mortgagor is not required to pay for the Rating Agency Confirmation, then
such expense will be paid by the Trust. The parties hereto acknowledge that if
the Trust incurs any Additional Trust Expense associated solely with the release
of collateral that is not required to be paid by a Mortgagor pursuant to the
related Mortgage Loan documents (and such Additional Trust Expense is not paid
by the Mortgagor), including, but not limited to, rating agency fees, then the
sole obligation of the related Seller shall be to pay an amount equal to such
expense to the extent the related Mortgagor is not required to pay them.
Promptly upon receipt of notice of such unpaid expense, regarding a Specially
Serviced Mortgage Loan, the Special Servicer shall request the related Seller to
make such payment by deposit to the Certificate Account.
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(e) The Special Servicer will promptly deliver to the Master Servicer,
the Operating Adviser, the Trustee, the Paying Agent, the Rating Agencies (and,
solely with respect to an A/B Mortgage Loan, the related B Note Holder) a
notice, specifying any assignments and assumptions, modifications, waivers or
amendments executed pursuant to this Section 9.5, such notice identifying the
affected Specially Serviced Mortgage Loan. Such notice shall set forth the
reasons for such waiver, modification, or amendment (including, but not limited
to, information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external appraisal
performed in accordance with MAI standards and methodologies (and, if done
externally, the cost of such appraisal shall be recoverable as a Servicing
Advance subject to the provisions of Section 4.4 hereof)). The Special Servicer
shall also deliver to the Trustee (or the Custodian), for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The applicable Special Servicer shall be entitled to 100% of any Modification
Fees received in connection with a Specially Serviced Mortgage Loan. The
inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 50% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b). The Special
Servicer shall be entitled to 100% of any assumption fee received in connection
with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser prior to acting,
and provisions of this Agreement requiring such shall be of no effect, if the
Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the 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,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's
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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 the Excess Interest Grantor Trust, (C) expose the Trust,
the Depositor, the Master Servicer, the Special Servicer, the Paying Agent or
the Trustee, or any of their respective Affiliates, officers, directors,
employees or agents, to any material claim, suit or liability, or (D) materially
expand the scope of the Special Servicer's responsibilities under this
Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust, has a Principal Balance
of more than $20,000,000 or is one of the 10 largest Mortgage Loans based on
Principal Balance or (y) has a Loan-to-Value Ratio (which includes the
indebtedness to be secured by such additional lien or other encumbrance and any
other loans secured by the related Mortgaged Property or interests in the
related Mortgagor) that is greater than or equal to 85% or a Debt Service
Coverage Ratio (which includes debt service on the indebtedness to be secured by
such additional lien or other encumbrance and any other loans secured by the
related Mortgaged Property or interests in the related Mortgagor) that is less
than 1.2x.
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 Mortgage Loan, the Special Servicer will
immediately 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.
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(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) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(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 one Business Day
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.
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(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 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 Delaware, 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);
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(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
(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
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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 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.
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(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
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 with a minimum claims
paying ability rating of at least "A" by S&P and "A2" by Xxxxx'x 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 S&P and "A2"
by Xxxxx'x, 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
Mortgage Loan, Serviced Companion Mortgage Loan and B Note to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan, Serviced Companion Mortgage Loan and
B Note (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 Special 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 Mortgaged 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 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 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 Companion
Mortgage Loan and any B Note, 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.
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Such amounts, if any, collected by the Special Servicer from the related
Mortgagor shall be transferred by the Special Servicer to the Master Servicer
within one Business Day of receipt thereof, and deposited by the Master Servicer
in the Certificate Account. 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 received in connection with, each such acquired property as the
Liquidation 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.
(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 (net of amounts used to pay Advance Interest) 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 (other than any such fees payable in
connection with any Non-Serviced Mortgage Loan). The Special Servicer shall also
be permitted to receive 50% of all assumption fees collected with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in
Section 8.7(a) and 8.7(b) and 100% of all assumption fees collected with respect
to Mortgage Loans that are Specially Serviced Mortgage Loans as provided in
Section 9.5(a) (other than any such fees payable in connection with any
Non-Serviced Mortgage Loan and, to the extent provided for in the related
Intercreditor Agreement, the Hampton Inn-Cranberry Township A/B Mortgage Loan
and the Yearling Green A/B Mortgage Loan). To the extent any component
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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:
(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
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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 or the Special Servicer pursuant to this Agreement, subject
to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the 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
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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.
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 "Xxxxx
Fargo Bank, National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc. Commercial Mortgage Pass-Through Certificates Series 2007-HQ11,
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
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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 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
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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 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
or the Special 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
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(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
(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.
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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 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
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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.
(d) 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 9.16 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).
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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 the 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); provided, further, that for so long as the Trust, and with
respect to any Serviced Companion Mortgage Loan the trust in such Other
Securitization, is subject to the reporting requirements of the Exchange Act,
the Depositor or the depositor in such Other Securitization, as the case may be,
shall have consented thereto (which consent shall not be unreasonably withheld).
If the conditions to the proviso in the foregoing sentence are not met, the
Trustee may terminate 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.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in 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
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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 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,
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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 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,
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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.
(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
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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
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 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
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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.
(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 or 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.
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(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.
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.
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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 of the Class A-4FL Grantor Trust, the Class A-MFL
Grantor Trust or the Excess Interest Grantor Trust to take any action that could
(i) endanger its status as a grantor trust or (ii) result in the imposition of
any tax upon any of the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust
or the Excess Interest Grantor Trust 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.
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
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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) a Special Servicing Officer of the
Special Servicer receives actual knowledge that Xxxxx'x has (A) qualified,
downgraded or withdrawn its rating or ratings of one or more Classes of
Certificates, or (B) 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 a Special Servicing Officer of the Special Servicer obtained such
actual knowledge) and, in the case of either of clauses (A) or (B), citing
servicing concerns with the Special Servicer as the sole or material factor in
such rating action; (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 Special Servicer or of or
relating to all or substantially all of its property; or (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 comply with any of its obligations under Article XIII of
this Agreement or (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. 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 who will (i) 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,
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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) The holder of the Deptford Mall B Note (and the Xxxxxxxx Xxxx X-0
Note, if advanced), for so long as it is the Controlling Holder (as defined in
the related Intercreditor Agreement), shall have the right to terminate the
Special Servicer with respect to the Deptford Mall 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 Deptford Mall B Note (or the
Xxxxxxxx Xxxx X-0 Note, if advanced), so terminates the Special Servicer, the
holder of the Deptford Mall B Note or the Xxxxxxxx Xxxx X-0 Note, if advanced,
as applicable, shall appoint a successor Special Servicer who will (i) in the
case of the Deptford Mall 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 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 Deptford
Mall B Note or the Xxxxxxxx Xxxx X-0 Note, if advanced, as applicable, 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) Reserved [Only Applicable When Not Rated By Xxxxx'x].
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 (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
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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 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
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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 Master 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) 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.
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(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:
(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
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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.
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 such Special Servicer has determined, in its
reasonable, good faith judgment, would): (A) require or cause such Special
Servicer to violate applicable law, the terms of any Mortgage Loan or any other
Section of this Agreement, including 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
the Excess Interest Grantor Trust, (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.
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(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 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 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) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall not be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of the
Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a net present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
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basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED.
SECTION 9.35 RESERVED.
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class and the Special Servicer (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 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.
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(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 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
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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 the 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 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 related Seller pursuant to Section 2.3. In addition, the
Option with respect to an A Note shall
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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 JER Investors Trust Inc. 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
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.
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(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 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. The Operating Adviser may
advise the Special Servicer with respect to the following actions of the Special
Servicer and the Special Servicer will not be permitted to take any of the
following actions unless and until it has notified the Operating Adviser in
writing and such Operating Adviser has not objected in writing (i) within 5
Business Days of having been notified thereof in respect of actions relating to
non-Specially Serviced Mortgage Loans (which 5 Business Day period shall run
concurrently with the time periods set forth in the applicable Primary Servicing
Agreement with respect to such actions) and (ii) within 10 Business Days of
having been notified thereof in respect of actions relating to Specially
Serviced Mortgage Loans and having been provided with all reasonably requested
information with respect thereto (it being understood and agreed that if such
written objection has not been received by the Special Servicer within such 5
Business Day or 10 Business Day period, as applicable, then the Operating
Adviser's approval will be deemed to have been given):
(i) any 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 modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term of a Mortgage Loan or A/B
Mortgage
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Loan or a modification consisting of the extension of the original Maturity Date
of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or A/B
Mortgage Loan (other than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into compliance
with Environmental Laws;
(v) any release of or acceptance of substitute or additional
collateral for a Mortgage Loan or A/B Mortgage Loan that is not otherwise
expressly provided for under the Mortgage Loan documents;
(vi) any acceptance of a discounted payoff;
(vii) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause;
(viii) any acceptance or consent to acceptance of an assumption
agreement releasing a Mortgagor from liability under a Mortgage Loan or A/B
Mortgage Loan;
(ix) any release of collateral for a Specially Serviced Mortgage
Loan or A/B Mortgage Loan (other than in accordance with the terms of or upon
satisfaction of, such Mortgage Loan);
(x) any franchise changes or certain management company changes
for which the Special Servicer is required to consent;
(xi) releases of any Escrow Accounts, reserve accounts or Letters
of Credit that are not in compliance with the related Mortgage Loan documents;
and
(xii) any determination as to whether any type of property-level
insurance is required under the terms of any Mortgage Loan or A/B Mortgage Loan,
is available at commercially reasonable rates, is available for similar
properties in the area in which the related Mortgaged Property is located or any
other determination or exercise of discretion with respect to property-level
insurance.
Notwithstanding the foregoing, the Operating Adviser shall not be
entitled to the consultation rights set forth above if such action has already
been approved or deemed approved in accordance with Section 9.32 of this
Agreement.
With respect to items (vii), (viii) and (ix), 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-terminous with those of Special Servicer.
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
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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 anything herein to the contrary, no advice, direction
or objection from the Operating Adviser, as contemplated by this Section 9.39 or
elsewhere, 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
its reasonable, good faith judgment, will) (i) require or cause the Master
Servicer or the Special Servicer to violate applicable law, the terms of any
Mortgage Loan, any Intercreditor Agreement, Loan Pair Intercreditor Agreement,
any provision of this Agreement or the REMIC Provisions, including the Master
Servicer's or the Special Servicer's obligations to act in accordance with the
Servicing Standard or (ii) result in an Adverse REMIC Event with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to the Excess Interest
Grantor Trust.
The Master Servicer (with respect to any Non-Serviced Mortgage
Loan that is not a "Specially Serviced Mortgage Loan" under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement) or Special Servicer
(with respect to any Non-Serviced Mortgage Loan that is a "Specially Serviced
Mortgage Loan" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement), as applicable, is authorized to exercise the rights and
powers of the Trustee, as holder of the Mortgage Note for each of the
Non-Serviced Mortgage Loans, under each of the related Non-Serviced Mortgage
Loan Intercreditor Agreements and Non-Serviced Mortgage Loan Pooling and
Servicing Agreements to the extent set forth in this Agreement. The Master
Servicer or Special Servicer, as applicable, shall be subject to the same
limitations, constraints and restrictions in exercising such rights and powers
as would be applicable to the Trustee, in its capacity as holder of the Mortgage
Note for the applicable Non-Serviced Mortgage Loan and shall be further subject
to such consultation or approval rights of the Operating Adviser under this
Section 9.39 as would be applicable if such Non-Serviced Mortgage Loan were
serviced under this Agreement. Subject to any section of the applicable
Non-Serviced Mortgage Loan Intercreditor Agreement that specifically addresses a
particular matter with respect to a Non-Serviced Mortgage Loan, if the Trustee
is requested to take any action in its capacity as holder of the Mortgage Note
for such Non-Serviced Mortgage Loan, the Trustee will notify in writing the
Master Servicer or Special Servicer, as applicable, and, subject to Section 7.1,
act in accordance with the instructions of, such party to the extent set forth
in this Agreement; provided, that the Trustee shall not be required to take any
action at the direction of the Master Servicer or Special Servicer, as
applicable, that is not permitted under applicable law or the terms of the
related Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced
Mortgage Loan Pooling and Servicing Agreement. Notwithstanding the foregoing,
any such party may only exercise any purchase option or cure rights with respect
to a Non-Serviced Companion Mortgage Loan in its individual capacity and not on
behalf of the Trust.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.
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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 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.
A holder of the Deptford Mall B Note (and the Deptford Mall B-2 Note,
if advanced) shall be entitled to terminate the Special Servicer with respect to
the Deptford Mall A/B Mortgage Loan as set forth in Section 9.30(d) of this
Agreement.
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ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION OF
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-4FL Certificateholders and the
Class A-MFL 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 or (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 Holder of a majority of the Controlling Class, the Special
Servicer, the Master Servicer and the Holders of the Class R-I Certificates; and
the Holder of a majority of the Controlling Class, the Master Servicer, the
Special Servicer and the Holders of the Class R-I Certificates, in such priority
(and in the case of the Class R-I Certificateholders, a majority of the Class
R-I Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. 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 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
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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 Agents 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-4FL Certificates and the Class A-MFL
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-3-1, Class A-3-2, Class A-AB,
Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K Certificates 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 related 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 related 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 the Trustee under this Agreement through the date
of the liquidation of the Trust that may be withdrawn from the
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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 related 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 Class A-4FL Grantor Trust shall be
distributed to the Class A-4FL Certificateholders on a pro rata basis and (iii)
any funds or other property held by the Class A-MFL Grantor Trust shall be
distributed to the Class A-MFL 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 Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Swap Counterparty, the Holders of the
Residual Certificates, the Class T Certificates, the REMIC III Regular
Certificates, the Class A-4FL Certificates and the Class A-MFL 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 Class T Certificates, the REMIC III Regular
Certificates, the Class A-4FL Certificates and the Class A-MFL 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 Trustee 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 Certificate Registrar
with respect to the Residual Certificates, the Class T Certificates, the REMIC
III Regular Certificates the Class A-4FL Certificates and the Class A-MFL
Certificates shall terminate and the Trustee shall terminate, or request the
Master
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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, the REMIC III
Regular Certificates, the Class A-4FL Certificates and the Class A-MFL
Certificates in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Residual Certificates, the Class T Certificates, the
Class A-4FL Certificates, the Class A-MFL Certificates and the REMIC III 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 the 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-4FL Certificates and the
Class A-MFL 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 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;
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(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-4FL Certificates and the Class A-MFL
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-4FL Certificates and the Class A-MFL 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 III Regular Certificates, Class
A-4FL Certificates, Class A-MFL 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 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
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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.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicer
and the Trustee that
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neither the Depositor, the Certificate Registrar, the Paying Agent, the Master
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.
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ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool, the
Class A-4FL Grantor Trust, the Class A-MFL 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, and the Interest
Reserve Account, the Reserve Account and the Distribution Account (exclusive of
the Class A-4FL Floating Rate Account, the Class A-MFL Floating Rate Account and
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-4FL Regular Interest and the Class A-MFL
Regular Interest are issued. For purposes of such election, the Class A-1, Class
A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB, Class A-4, Class A-M,
Class A-J, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and
Class S Certificates, the Class A-4FL Regular Interest and the Class A-MFL
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.
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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 REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Regular Certificates, the Class A-4FL Regular Interest, the Class
A-MFL 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
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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 Depositor or any REMIC Pool for any
expense incurred by the Master 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 applicable REMIC Pool's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the 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
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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
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 and each of the Class A-4FL Grantor Trust,
the Class A-MFL 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-4FL Grantor Trust, the
Class A-MFL 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; (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
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pursuant to Section 9.14(e) shall be charged to and paid by the Trust from the
net income generated on the related REO Property. Any such amounts payable by
the Trust in respect of taxes shall be paid by the 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
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consent of the Depositor, unless such information is generally available to the
public (other than as a result of a breach of this Section 12.1(n)) or is
required by law or applicable regulations to be disclosed or is disclosed (i) to
independent auditors and accountants, counsel and other professional advisers of
the 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-4FL Regular
Interest, for the Class A-MFL 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 REMIC III Certificates, other than
the Residual Certificates, as 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 that is not in default or as to which default is
not reasonably foreseeable or a Specially Serviced Mortgage Loan 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
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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.
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-4FL GRANTOR TRUST, CLASS A-MFL GRANTOR TRUST AND
EXCESS INTEREST GRANTOR TRUST.
(a) 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. The Class A-4FL Certificates are hereby designated as undivided beneficial
interests in the Class A-4FL Regular Interest, the Class A-4FL Swap Contract and
the proceeds thereof in the Class A-4FL Floating Rate Account, which portions of
the Trust Fund will be treated as a grantor trust within the meaning of subpart
E, part I of Subchapter J of the Code. In addition, the Class A-MFL Certificates
are hereby designated as undivided beneficial interests in the Class A-MFL
Regular Interest, the Class A-MFL Swap Contract and the proceeds thereof in the
Class A-MFL Floating Rate Account, which portions of the Trust Fund will be
treated as a grantor trust within the meaning of subpart E, part I of Subchapter
J of the Code. It is intended that the portion of the Trust consisting of the
Excess Interest Grantor Trust will be treated as a grantor trust for federal
income tax purposes, and each of the parties to this Agreement agrees that it
will not take any action that is inconsistent with establishing or maintaining
such treatment. Under no circumstances may the Paying Agent vary the assets of
the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust or the Excess
Interest Grantor Trust so as to take advantage of variations in the market so as
to improve the rate of return of Holders of the Class T Certificates, the Class
A-4FL Certificates or the Class A-MFL Certificates. The Paying Agent shall be
deemed to hold and shall account for each of the Class
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A-4FL Grantor Trust, the Class A-MFL Grantor Trust and the Excess Interest
Grantor Trust separate and apart from each other and from the assets of REMIC I,
REMIC II and REMIC III created hereunder.
(b) The parties intend that the portions of the Trust consisting of
the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust and the Excess
Interest Grantor Trust shall 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 T
Certificateholders, the Class A-4FL Certificateholders and the Class A-MFL
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income and expenses relating to
their shares of the income and expenses of the Class A-4FL Grantor Trust, the
Class A-MFL Grantor Trust and the Excess Interest Grantor Trust, respectively
and with respect to the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust
and the Excess Interest Grantor Trust, on the cash or accrual method of
accounting and so as to enable reporting to Holders of Class T Certificates, the
Class A-4FL Certificates and the Class A-MFL Certificates, respectively based on
their annual accounting period, at the time or times and in the manner required
by the Code.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
SECTION 13.1 INTENT OF THE PARTIES; REASONABLENESS.
Except with respect to Section 13.9, Section 13.10 and Section 13.11,
the parties hereto acknowledge and agree that the purpose of Article XIII of
this Agreement is to facilitate compliance by the Depositor with the provisions
of Regulation AB and related rules and regulations of the Commission. Neither
the Depositor nor the Paying Agent shall exercise its rights to request delivery
of information or other performance under these provisions other than 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 Xxxxxx Xxxxxxx Capital I Inc., Series 2007-HQ11 transaction, each of
the Master Servicer, the Special Servicer, any Primary Servicer, the Trustee and
the Paying Agent shall cooperate fully with the Depositor and the Paying Agent,
as applicable, to deliver or make available to the Depositor or the Paying
Agent, 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
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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, the Primary Servicer, the Trustee
or the Special Servicer are responsible for filing any Exchange Act report with
the Commission.
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-HQ11 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
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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 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 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,
the 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 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
connection with the offering of the Certificates regarding damages incurred in
connection with the non-compliance with the requirements of Regulation AB
relating to the disclosure referred to in this sentence.
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 XV and directed to the Depositor and the Paying Agent for
approval by the Depositor. The
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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 XV) 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 XV hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule XV 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 known by such person, the form and substance of the corresponding
Additional Form 10-D Disclosure set forth on Schedule XV, if applicable, and in
form readily convertible to an XXXXX-compatible form, or in such other form as
otherwise agreed by the Depositor, the Paying Agent and such party. Each Person
set forth on Schedule XV hereto shall include with such Additional Form 10-D
Disclosure an Additional Disclosure Notification in the form attached hereto as
Schedule XVIII. 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 listed on Schedule XV 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 (312)
904-2084 and by email to xxxxx@xxxxxxx.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
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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 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.
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 2007, 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
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under Section 13.11 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to such
Form 10-K, disclosure that such report is not included and an explanation as to
why such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as 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 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-K Disclosure (other than such Additional Form 10-K 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, 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 2007, each Person identified on Schedule
XVI 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 known by such Person, the form and substance of the
corresponding Additional Form 10-K Disclosure as set forth on Schedule XVI, 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 XVI hereto shall include with such Additional
Form 10-K Disclosure an Additional Disclosure Notification in the form attached
hereto as Schedule XVIII. 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 XVI 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 (312)
904-2084 and by email to xxxxx@xxxxxxx.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. (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
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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. 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 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
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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.
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
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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 XVII 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 XVII) absent such reporting, direction
and approval.
As set forth on Schedule XVII 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 XVII shall 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, to the extent known by such Person, the
form and substance of the corresponding Form 8-K Disclosure Information, 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 Party. Each Person set forth on Schedule XVII hereto shall
include with such Form 8-K Disclosure Information an Additional Disclosure
Notification in the form attached hereto as Schedule XVII. 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 xxxxx@xxxxxxx.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 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
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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, the 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 XVII with regard to such
Reportable Event.
SECTION 13.8 FORM 15 FILING; INCOMPLETE EXCHANGE ACT FILINGS;
AMENDMENTS TO EXCHANGE ACT REPORTS.
(a) On or before January 30 of the first year in which the 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 13.4,
13.5 and 13.7 (and the obligations of the Primary Servicer under clauses (i),
(ii) and (iii) of Section 5.13(c) of the Primary Servicing Agreement) 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).
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(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 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, the Primary Servicer and the Paying Agent and each
Sub-Servicer (each a "Certifying Servicer") shall (and the Master Servicer, the
Special Servicer, the Primary Servicer and the Paying Agent shall (a) use
reasonable efforts to cause each Additional Servicer and each
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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 the 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, the 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, the 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 (excluding the Primary Servicer) or any
Sub-Servicer (excluding the Primary 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 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.
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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, the 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, the 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,
the 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, the 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.
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, the
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, the 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 XIV and notify the Depositor of any exceptions.
None of the Master Servicer, the Special Servicer, the Primary Servicer, the
Trustee
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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, the 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, the 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), the 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 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
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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 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) an actual
breach by the Indemnifying Party of such Indemnifying Party's representations
under Section 1.02(d) of the related indemnification agreement, each dated
February 15, 2007,
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between the related Indemnifying Party, the Depositor and the Underwriters, (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, (iii) failure to perform its obligations under this
Article XIII or (iv) 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) cause 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.
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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 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.
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 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
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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 and the Master Servicer determine that that industry standard has
changed, (x) such modification will not result in an Adverse REMIC 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
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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, addressed to the parties to this Agreement (including the
Primary Servicer), 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 set forth 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 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
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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 related
Mortgage Loan Purchase Agreement without the consent of the applicable 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 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.
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(k) Notwithstanding anything to the contrary contained in this Section
14.3, the Depositor shall provide Principal with notice of any amendments to
this Agreement.
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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, Capmark Finance Inc., at 000 Xxxxx Xxxx,
Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxxxxxxx; (D) in the case of MSMC,
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx; (E) in the case of the
Special Servicer, X.X. Xxxxxx Company, Inc., 00000 X. Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx, 00000, Attention: Xxxx Xxxxxxxxxxx, telecopy number: (972)
692-5161 with a copy to JER Investors Trust Inc., 0000 Xxxxxx Xxxxxxxxx, Xxxxx
0000, XxXxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number: (703)
336-8352; (F) in the case of the initial Operating Adviser, JER Investors Trust
Inc., 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, Attention:
Xxxxx Xxxxxxx, telecopy number: (000) 000-0000 with a copy to X.X. Xxxxxx
Company, Inc., 00000 X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, 00000,
Attention: Xxxx Xxxxxxxxxxx, telecopy number: (000) 000-0000; (G) in the case of
LaSalle, LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxx, fax number: (312)
000-0000; (H) in the case of PCFII, Principal Global Investors, LLC, 000 Xxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Senior Vice
President/Managing Director, with a copy to Xxxxxx X. Xxxxxxxxx, Esq., and (I)
in the case of the Paying Agent, at its Corporate Trust Office; 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 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
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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;
(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;
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(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to Moody's, to:
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Real Estate Monitoring
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.
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(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.
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
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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 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 Sellers will pay the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates. The Master 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).
318
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.
319
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
CAPMARK FINANCE INC., as Master Servicer
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Senior Vice President
X.X. XXXXXX COMPANY, INC.,
as Special Servicer
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Dicrector
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee and Custodian
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
320
LASALLE BANK NATIONAL ASSOCIATION,
as Paying Agent, Authenticating Agent
and Certificate Registrar
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PRINCIPAL GOLBAL INVESTORS. LLC, acting
solely in its capacity as Primary
Servicer with respect to the sections
referred to in Section 14.15 of the
Agreement
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Senior
Investment Counsel
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Counsel
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 23rd day of February 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Xxxxxx Xxxxxxx
Capital I Inc., and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On this 23rd day of February 2007, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxxxxxxxx, personally known to me
( or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Sr. Vice President on behalf of Capmark
Finance Inc., and acknowledged to me that such corporation executed the
instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
/s/ Xxxx Xxxxx
---------------------------------------
Notary Public
[Notary Stamp]
ii
STATE OF VIRGINIA )
) ss.:
COUNTY OF FAIRFAX )
On this 28th day of February 2007, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Managing Director on behalf of X.X. Xxxxxx
Company, Inc., and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
iii
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On this 28th day of February 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxxxxxx, personally known to
me to be Vice President on behalf of 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 hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
iv
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this 9th day of November 2006, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of LaSalle Bank N.A.,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
v
STATE OF IOWA )
) ss.:
COUNTY OF POLK )
On this 26th day of February 2007, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx,
known to me to be a Vice President & Senior Investment Counsel and Counsel of
Principal Global Investors, LLC, of the entity that executed the within
instrument, and acknowledged to me that such entity executed within instrument,
and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.246%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $44,400,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE:
$44,400,000
No. A-1-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.422%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-1A CERTIFICATES AS OF THE CLOSING
DATE: $355,879,000
CERTIFICATE BALANCE OF THIS CLASS A-1A CERTIFICATE AS OF THE CLOSING DATE:
$355,879,000
No. A-1A-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.359%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $196,200,000
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE CLOSING DATE:
$196,200,000
No. A-2-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-3-1 CERTIFICATE]
THIS CLASS A-3-1 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, THE
PRIMARY 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-3-1 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-HQ11
INITIAL PASS-THROUGH RATE: 5.439%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-3-1 CERTIFICATES AS OF THE CLOSING
DATE: $306,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3-1 CERTIFICATE AS OF THE CLOSING DATE:
$306,000,000
No. A-3-1-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
CLASS A-3-1 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-3-1 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-3-1 Certificates. The
Certificates are designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-3-2 CERTIFICATE]
THIS CLASS A-3-2 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, THE
PRIMARY 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-3-2 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-HQ11
INITIAL PASS-THROUGH RATE: 5.441%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-3-2 CERTIFICATES AS OF THE CLOSING
DATE: $50,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3-2 CERTIFICATE AS OF THE CLOSING DATE:
$50,000,000
No. A-3-2-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
CLASS A-3-2 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-3-2 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-3-2 Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-AB CERTIFICATE]
THIS CLASS A-AB 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, THE
PRIMARY 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-AB 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-HQ11
INITIAL PASS-THROUGH RATE: 5.444%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-AB CERTIFICATES AS OF THE CLOSING
DATE: $59,300,000
CERTIFICATE BALANCE OF THIS CLASS A-AB CERTIFICATE AS OF THE CLOSING DATE:
$59,300,000
No. A-AB-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
CLASS A-AB 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-AB 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-AB Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11 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 March 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) 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.447%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-4 CERTIFICATES AS OF THE CLOSING
DATE: $500,573,000
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE AS OF THE CLOSING DATE:
$500,573,000
No. A-4-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-4FL CERTIFICATE]
THIS CLASS A-4FL 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, THE
PRIMARY 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-4FL 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-HQ11
INITIAL PASS-THROUGH RATE: LIBOR + 0.135%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-4FL CERTIFICATES AS OF THE CLOSING
DATE: $180,000,000
CERTIFICATE BALANCE OF THIS CLASS A-4FL CERTIFICATE AS OF THE CLOSING DATE:
$180,000,000
No. A-4FL-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO.: 00000XXX0
CLASS A-4FL 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-4FL 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-4FL Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11 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 March 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) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: February 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4FL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-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, THE
PRIMARY 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-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-HQ11
INITIAL PASS-THROUGH RATE: 5.478%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-M CERTIFICATES AS OF THE CLOSING
DATE: $161,765,000
CERTIFICATE BALANCE OF THIS CLASS A-M CERTIFICATE AS OF THE CLOSING DATE:
$161,765,000
No. A-M-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ___________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: LIBOR + 0.170%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-MFL CERTIFICATES AS OF THE CLOSING
DATE: $80,000,000
CERTIFICATE BALANCE OF THIS CLASS A-MFL CERTIFICATE AS OF THE CLOSING DATE:
$80,000,000
No. A-MFL-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO.: 00000XXX0
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-HQ11 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 March 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) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: February 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ___________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE 5.508%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS A-J CERTIFICATES AS OF THE CLOSING
DATE: $190,389,000
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE AS OF THE CLOSING DATE:
$190,389,000
No. A-J-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE 5.538%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $18,133,000
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE:
$18,133,000
No. B-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.558%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $36,264,000
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE:
$36,264,000
No. C-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.587%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $24,177,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE:
$24,177,000
No. D-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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]
THIS CLASS E 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, THE
PRIMARY 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 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-HQ11
INITIAL PASS-THROUGH RATE: 5.627%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $12,088,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE:
$12,088,000
No. E-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-16
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F 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, THE
PRIMARY 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 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-HQ11
INITIAL PASS-THROUGH RATE: 5.637%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $21,155,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE:
$21,155,000
No. F-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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-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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.593%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $24,176,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE:
$24,176,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. G-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.688%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $27,199,000
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE:
$27,199,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. H-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.688%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $24,176,000
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE CLOSING DATE:
$24,176,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. J-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ___________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.688%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $33,243,000
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE CLOSING DATE:
$33,243,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. K-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX OF THE CLASS L CERTIFICATES AS OF THE CLOSING DATE: $9,066,000
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE CLOSING DATE:
$9,066,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. L-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $6,044,000
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE CLOSING DATE:
$6,044,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. M-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $9,066,000
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE CLOSING DATE:
$9,066,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. N-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $3,022,000
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE CLOSING DATE:
$3,022,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. O-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $9,066,000
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE CLOSING DATE:
$9,066,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. P-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS Q CERTIFICATES AS OF THE CLOSING
DATE: $9,067,000
CERTIFICATE BALANCE OF THIS CLASS Q CERTIFICATE AS OF THE CLOSING DATE:
$9,067,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. Q-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 5.192%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: XXXXX 00, 0000
XXXXXXXXX CERTIFICATE BALANCE OF THE CLASS S CERTIFICATES AS OF THE CLOSING
DATE: $27,198,574
CERTIFICATE BALANCE OF THIS CLASS S CERTIFICATE AS OF THE CLOSING DATE:
$27,198,574 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. S-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
PERCENTAGE INTEREST OF THIS CLASS T CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: MARCH 14, 2007
No. T-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO.
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 [______________________] 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-HQ11 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 March 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.
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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS T CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
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 (Cust)
entireties
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, THE
PRIMARY 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-HQ11
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: MARCH 14, 2007
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
NO. R-I-1
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-HQ11 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: MARCH 14, 2007
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
NO. R-II-1
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-HQ11 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: MARCH 14, 2007
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
NO. R-III-1
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-HQ11 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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, THE
PRIMARY 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-HQ11
INITIAL PASS-THROUGH RATE: 0.240%
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE: $2,417,646,574
DATE OF POOLING AND SERVICING AGREEMENT: AS OF FEBRUARY 1, 2007
CUT-OFF DATE: FEBRUARY 1, 2007
CLOSING DATE: FEBRUARY 28, 2007
FIRST DISTRIBUTION DATE: MARCH 14, 2007
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AS OF THE CLOSING DATE:
$2,417,646,574 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. X-1
MASTER SERVICER: CAPMARK FINANCE INC.
SPECIAL SERVICER: X.X. XXXXXX COMPANY, INC.
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUSIP NO. 00000XXX0
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-HQ11 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 March 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: FEBRUARY 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
-------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ____________ Custodian
TEN ENT - as tenants by the (Cust)
entireties
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
February 28, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx
Capmark Finance Inc.
[ADDRESS]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11
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 REMIC I Regular Interests, and the REMIC II Regular
Interests.
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.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee and Custodian
By: /s/
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
FEBRUARY 28, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx
Capmark Finance Inc.
[ADDRESS]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11
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 REMIC I Regular Interests, and the REMIC II Regular
Interests.
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.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee and Custodian
By:
-------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: Xxxxx Fargo Bank, National Association, as Trustee and Custodian 0000 Xxx
Xxxxxxxxx Xxxx Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc. Mortgage Pass-Through Certificates,
Series 2007-HQ11
DATE: __________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of February 1,
2007 by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Capmark Finance
Inc., as Master Servicer, X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx
Fargo Bank, National Association, as Trustee and Custodian, and LaSalle 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]
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (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 February 28, 2007 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of February 1, 2007,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark
Finance Inc., as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as trustee and custodian,
LaSalle 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]
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (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 February 28, 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 February 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark Finance Inc., as
master servicer, X.X. Xxxxxx Company, Inc., as special servicer, Xxxxx Fargo
Bank, National Association, as trustee and custodian, and LaSalle 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]
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (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 February 28, 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 February 1, 2007,
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark Finance
Inc., as master servicer, X.X. Xxxxxx Company, Inc., as special servicer, Xxxxx
Fargo Bank, National Association, as trustee and custodian (the "Trustee"), and
LaSalle 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. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class G, Class H, Class J and Class K
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.
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-HQ11 (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 February 28, 2007 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
February 1, 2007, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, Xxxxx Fargo Bank, National Association, as trustee
and custodian (the "Trustee"), and LaSalle 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. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class G, Class H, Class J and Class K
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.
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-HQ11 (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 February 28, 2007 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
February 1, 2007, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, Xxxxx Fargo Bank, National Association, as trustee
and custodian (the "Trustee"), and LaSalle 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. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X, Class G, Class H, Class J and Class ]
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.
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.
----------
(2) 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
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
Yes No Certificate 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-HQ11, 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 (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 (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 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.
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 Class R 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 Class R 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 Class R
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 Class R 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 Class R 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 Class R 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 (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 Class R
Certificate is, and at the time of transfer will be, a United States Tax Person.
17. 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__
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (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 February 1, 2007 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor,
Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as trustee and custodian,
LaSalle 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-HQ11, 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.
EXECUTION COPY
EXHIBIT G-1
FORM PRINCIPAL PIRMARY SERVICING AGREEMENT
----------
PRIMARY SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2007
----------
CAPMARK FINANCE INC.
AS MASTER SERVICER,
PRINCIPAL GLOBAL INVESTORS, LLC,
AS PRIMARY SERVICER,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2007
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
CAPMARK FINANCE INC.
AS MASTER SERVICER,
X.X. XXXXXX COMPANY, INC.
AS SPECIAL SERVICER,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS TRUSTEE AND CUSTODIAN
AND
LASALLE BANK NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS..................................................................... 1
ARTICLE II. PRIMARY SERVICING............................................................... 9
Section 2.1 Primary Servicing................................................. 9
Section 2.2 Standard of Care.................................................. 18
Section 2.3 Compensation and Other Payments to the Primary Servicer........... 18
Section 2.4 Primary Servicer Representations and Warranties................... 19
ARTICLE III. DOCUMENTS AND OTHER MATTERS..................................................... 20
Section 3.1 Segregation of Mortgage Loan Documents............................ 20
Section 3.2 Access to Documents; Provision of Certain Information............. 20
ARTICLE IV. MASTER SERVICER ASSISTANCE...................................................... 20
Section 4.1 Master Servicer Assistance........................................ 20
Section 4.2 Specially Serviced Mortgage Loans................................. 21
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS........................................... 22
Section 5.1 Notice of Litigation.............................................. 22
Section 5.2 No Personal Solicitation.......................................... 22
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy........... 22
Section 5.4 Primary Servicer's Financial Statements and Related Information... 23
Section 5.5 No Advancing...................................................... 23
Section 5.6 REMIC Compliance.................................................. 23
Section 5.7 Inspection Rights................................................. 23
Section 5.8 Authorized Officer................................................ 23
Section 5.9 Additional Reports................................................ 24
Section 5.10 Prepayment Interest Shortfalls and Excesses....................... 24
Section 5.11 Consents.......................................................... 25
Section 5.12 Quarterly Servicing Accounts Reconciliation Certification......... 25
Section 5.13 Exchange Act Reports; Annual Compliance Documents................. 25
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION;.......................................... 31
Section 6.1 Primary Servicer Default.......................................... 31
Section 6.2 Termination....................................................... 33
Section 6.3 Post-Termination Obligations...................................... 34
Section 6.4 Additional Termination............................................ 35
ARTICLE VII. SUBCONTRACTORS.................................................................. 36
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER....................... 37
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
ARTICLE IX. INDEMNIFICATION................................................................. 37
Section 9.1 Primary Servicer's Indemnity...................................... 37
Section 9.2 Master Servicer's Indemnity....................................... 38
ARTICLE X. MISCELLANEOUS................................................................... 38
Section 10.1 Severability...................................................... 38
Section 10.2 Rights Cumulative; Waivers........................................ 38
Section 10.3 Headings.......................................................... 38
Section 10.4 Construction...................................................... 38
Section 10.5 Assignment........................................................ 39
Section 10.6 Prior Understandings.............................................. 40
Section 10.7 Integrated Agreement.............................................. 41
Section 10.8 Counterparts...................................................... 41
Section 10.9 Governing Laws.................................................... 41
Section 10.10 Notices........................................................... 41
Section 10.11 Amendment......................................................... 41
Section 10.12 Other............................................................. 42
Section 10.13 Benefits of Agreement............................................. 42
ii
This PRIMARY SERVICING AGREEMENT, dated and effective as of February
1, 2007, by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the capacity of
primary servicer, the "Primary Servicer") and CAPMARK FINANCE INC., a national
banking association, 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 (the
"Depositor"), Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special --------- servicer, LaSalle Bank National Association, as
paying agent, certificate registrar and authenticating agent, and Xxxxx Fargo
Bank, National Association, as trustee and custodian, have entered into a
Pooling and Servicing Agreement, dated as of February 1, 2007, relating to the
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 (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(s), 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. There are no A/B Mortgage
Loans relating to this Agreement.
"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 HQ11 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 HQ11 Trust.
"B Note": With respect to any A/B Mortgage Loan, any 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.
-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.
"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 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
-3-
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.
"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 HQ11 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.
"HQ11 Trust": The trust established under the Pooling and Servicing
Agreement.
"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.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Servicing Proposal) to the PCFII Servicing Rights Purchase Agreement
to the effect that,
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except as disclosed to the Master Servicer, no Mortgage Loan under such
agreement has terms under which it may be paid off, in whole or in part, on a
date other than a due date or maturity date (including during open periods)
without payment of a full month of interest.
"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 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.
"PCFII Servicing Rights Purchase Agreement": The servicing rights
purchase agreement dated February [_], 2007 between Principal Commercial Funding
II, LLC, as Seller, and the Master Servicer, as Purchaser.
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"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 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 "Principal Global Investors, LLC, as Primary Servicer
for Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11."
"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
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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.
"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
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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 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": X.X. Xxxxxx Company, 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.
"Trustee": Xxxxx Fargo Bank, National Association or any successor
thereto as trustee under the Pooling and Servicing Agreement.
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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 established thereunder (construed
as if the Primary Servicer Collection Account were such Collection
Account), including without limitation the obligation, if any,
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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) 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
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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, at a per annum rate equal to the
Advance Rate from and including the date when
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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.
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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 March 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):
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Month of Frequency Time of Required
Description of Initial of Delivery to the
Report Report Report Master Servicer
------------------------------ ------------- --------------------- -------------------------------------
CMSA Property File April 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 Analysis June 2007 for Annually With respect to each calendar year,
Report, CMSA Financial File year-end 2006 beginning in 2007 for year-end 2006,
and NOI Adjustment Worksheet the earlier of (i) 30 days after
receipt of the underlying operating
statements from the borrower or (ii)
June 1.
CMSA Loan Level Reserve/LOC April 2007 Monthly 10th Business Day for prior month but
Report in no event later than the Business
Day prior to the Report Date in such
month.
CMSA Servicer Watch List April 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.
CMSA Comparative Financial April 2007 Monthly 10th Business Day for prior month but
Status Report in no event later than the Business
Day prior to the Report Date in such
month
Quarterly Operating Statement July 2007 Quarterly, but with With respect to a calendar quarter,
Analysis Report and CMSA respect to only the within 95 days following the end of
Quarterly Financial File first three calendar such calendar quarter (commencing
quarters in each year with the quarter ending on June 30,
2007).
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
Historical Loan Modification Report; CMSA Loan Level Reserve
Report; and CMSA Total Loan 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
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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
electronically.
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 than three Business Days after
collection of such funds. In the event that the
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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
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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").
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 ground lessor as
contemplated by such Section 8.3(i) of the Pooling and Servicing
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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 any successor) shall cause the
Excess Servicing Fee to be paid on the
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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.
In no event shall the Primary Servicer be responsible for reimbursing
or paying any independent costs or expenses incurred by the Master Servicer in
connection with a request for a modification, waiver or amendment of a Mortgage
Loan unless the Master Servicer has first notified the Primary Servicer of its
intent to incur such cost or expense and the Primary Servicer has agreed to pay
(or cause to be paid) such cost or expense.
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 as a corporation under the laws of the
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jurisdiction of its organization. Primary Servicer further represents that since
origination of each Mortgage Loan and A/B Mortgage Loan, Primary Servicer has
serviced each of the Mortgage Loans and A/B Mortgage Loans in accordance with
its terms.
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 1.02 of that certain Indemnification
Agreement, dated February 15, 2007, between the Primary Servicer, the Depositor
and the Underwriter.
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
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
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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.
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).
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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
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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.
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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.
If the Mandatory Prepayment Date Assumption proves to be inaccurate as
to any Mortgage Loan and, as a direct consequence of that inaccuracy, the Master
Servicer is required to make a payment of Compensating Interest on any Master
Servicer Remittance Date pursuant to Section 8.10(c) of the Pooling and
Servicing Agreement in respect of Prepayment Interest Shortfalls arising on that
Mortgage Loan during the then most recently ended Collection Period, the Primary
Servicer shall reimburse the Master Servicer the amount of such Compensating
Interest payment attributable to that Mortgage Loan promptly following request
therefor by the Master Servicer (for the avoidance of doubt, no such
reimbursement shall be required with respect to any B Note). The amount of
damages, if any, due and owing from the Primary Servicer under the PCFII
Servicing Rights Purchase Agreement with respect to an inaccuracy of the
Mandatory Prepayment Date Assumption shall be reduced by the amount of any
Compensating Interest paid by the Primary Servicer hereunder with respect to the
applicable Mortgage Loan. For the avoidance of doubt, no such reimbursement
shall be required to be made in connection with Prepayment Interest Shortfalls
resulting from involuntary Principal Prepayments except to the extent the
Primary Servicer did not apply the proceeds of such involuntary Principal
Prepayments in accordance with the terms of the related Mortgage Loan documents.
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
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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 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 2007 (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
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). The parties acknowledge the entitlement
granted to the Master Servicer and the Primary Servicer under the Pooling and
Servicing Agreement to conclusively assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. The
Primary Servicer shall
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be entitled to rely on such provisions of the Pooling and Servicing Agreement
and such acknowledgements for purposes of its duties under this Section 5.13.
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
HQ11 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 HQ11 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
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".
Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
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 13.7 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 the Primary Servicer
is required to deliver such information under Article XIII of the
Pooling and Servicing Agreement.
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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 13.4 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 the Primary Servicer is
required to deliver such information under Article XIII of the Pooling
and Servicing Agreement.
Form 10-K Information (Other than Annual Compliance 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 in
each month set forth in Section 13.5 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
the Primary Servicer is required to deliver such information under
Article XIII of the Pooling and Servicing Agreement.
Annual Compliance Information. Not later than the fifth Business
Day prior to the date when the Primary Servicer is required to deliver
such reports and statement under the Pooling and Servicing Agreement,
the Primary Servicer shall deliver to the Master Servicer the
following reports and statement:
(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
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(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.
Xxxxxxxx-Xxxxx Back-Up Certification. Not later than the fifth
Business Day prior to the date when the Primary Servicer is required
to deliver such backup certification under the Pooling and Servicing
Agreement, the Primary Servicer shall execute and deliver to the
Master Servicer 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.
[Reserved.]
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 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:
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
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
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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.
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.
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) in the absence of such resignation, removal, termination or
assignment, but only to 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.
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).
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,
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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.
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.
[Reserved.]
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.
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.
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.
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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 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;
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(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
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
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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;
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 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; or
the Primary Servicer shall fail to terminate any sub-servicer
appointed by it that is a Reporting Servicer subject to and in accordance
with Section 8.4(c) of the Pooling and Servicing Agreement; provided that
the Depositor may waive any such Event of Default under this clause (k) in
its sole discretion.
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 (a) 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.
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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.
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 (a) 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.
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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 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
-35-
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 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 13.12 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.
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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 (a) 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
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
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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 HQ11 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 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
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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.
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
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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 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
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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 14.5 of the
Pooling and Servicing Agreement
If to the Primary Servicer: Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx,
Managing Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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
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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 HQ11 Trust are
intended third-party beneficiaries of Section 5.13 and Section 6.1.
[END OF PAGE]
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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.
CAPMARK FINANCE INC., acting solely in
its capacity as Master Servicer under
the Pooling and Servicing Agreement
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Senior Vice President
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and
Senior Investment Counsel
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULES
PRIMARY
PROSPECTUS SERVICING
TAB CUT-OFF FEE RATE
NUMBER LOAN NAME DATE BALANCE (BASIS POINTS)
------ --------- ------------ --------------
10 Residence Inn Tudor Wharf $46,260,000 1
24 Southlake Corners $20,625,000 1
49 000 Xxxxx Xxxx $13,971,230 1
00 Xxxx Xxxxx Xxxxxxx Apartments $13,387,505 1
58 Prairie Packaging Facility $10,400,000 1
64 Euram Building $9,000,000 1
71 000 Xxxxxxxx Xxxxx $8,800,000 1
73 Cedar Tree Apartments $8,591,981 1
85 Allstate Office Building $7,500,000 1
87 Lakeshore Village Apartments $6,794,334 1
91 0000 Xxxxx Xxxxxxx Xxxxxxx $6,500,000 1
102 0000 Xxxx Xxxxx Xxxxxx $5,550,000 1
000 Xxxxxxxx Xxxxxx $5,320,000 1
113 Supply One Warehouse $5,097,423 1
127 Green Country Distribution $4,300,000 1
141 10620 & 00000 Xxxxxxxx Xxxx 0
Xxxxxxxxx $3,050,000
000 Xxxxx Xxxxxx Shopping Center $2,298,851 1
154 1525 Mall Road $2,226,333 1
157 West Lodi Self Storage $2,148,161 1
159 4110-4120 Xxxxxxxxx Retail Center $1,998,303 1
160 000 Xxxxxxxxx Xxxx $1,998,303 1
161 00000 Xxxxxx Xxxxx $1,997,467 1
164 1030 International Parkway $1,600,000 1
165 Morgan Manor $1,598,695 1
166 0000 0xx Xxxxxx Xxxxx $1,548,808 1
171 0000 Xxxxxxxxx Xxxxxxxxx $639,118 1
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:
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");
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
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 Requests Post Closing Request is either (a) Transfer rights contemplated in Loan Primary Servicer collects
(other than Deemed specifically authorized in the Documents (including without entire administrative or
Category 1 Requests) related Loan Documents (as defined in limitation assignment and assumption processing fee (including
Exhibit B-2(c)(A.1(b)), either rights); partial releases contemplated without limitation defeasance
expressly as a matter of right in in Loan Documents; easements fees), legal fees and
favor of the Mortgagor or upon the contemplated in Loan Documents; out-of-pocket expenses and 80%
satisfaction of certain specified evaluation of alterations under of any additional fees or
conditions (including the exercise of specified threshold; administer, portions of fees (including
any specified standard of consent or monitor and release of reserve or without limitation transfer
judgment within such conditions escrow amounts in accordance with fees) payable to Master
subject to the terms of this reserve or escrow agreements; approval Servicer under Pooling and
Agreement); or (b) seeks the approval of leases below threshold specified in Servicing Agreement (i.e.
of the related Mortgagee under the Loan Documents; additional lien, transfer fee). Other 20% of
related Loan Documents for a Lease monetary encumbrance or mezzanine such additional fees are
and/or the issuance of an SNDA for a financing placed on Mortgaged Property payable to Master Servicer.
Lease. that is specifically contemplated in Special Servicer would receive
Loan Documents under specified any portion of fees due it
conditions; or process of defeasing a under the Pooling and
Mortgage Loan (except defeasance of a Servicing Agreement. Master
Specially Serviced Mortgage Loans Servicer may also collect its
which shall not be the responsibility out-of-pocket expenses which
of the Primary Servicer) and servicing it shall itemize in reasonable
of Mortgage Loans and A/B Mortgage detail.(3)
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 Requests Post Closing Request (other than Consent to easement not contemplated For all Mortgage Loans, other
for all Mortgage Category 3 Request) is (a) not in Loan Documents; partial releases than A/B Mortgage Loans:
Loans (other than A/B specifically authorized or is not specifically contemplated in Loan Primary Servicer entitled to
Mortgage Loans) and prohibited or not addressed in the Documents; or subordinate or mezzanine one hundred percent (100%) of
Deemed Category 1 Loan Documents; and (b) not seeking financing not specifically administrative or processing
Requests approval of a Lease requiring such contemplated in Loan Documents. fee. Additional fees are
approval of Mortgagee under the payable to Master Servicer
related Loan Documents or issuance of and/or Special Servicer as
an SNDA. specified in Pooling and
Servicing Agreement. Master
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 Requests Post Closing Requests to Money Terms, Changes to maturity date, interest Primary Servicer not entitled
Defaulted Mortgage Loans or Mortgage rate, principal balance, amortization to fee. Master Servicer or
Loans upon which a Servicing Transfer term, payment amount or frequency; or Special Servicer is entitled
Event has occurred. any actions to loan in default. to fees as provided in the
Pooling and Servicing
Agreement.(1)
----------
(3) 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.
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:
Category 1 Requests and Deemed Category 1 Requests:
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.
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.
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.
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.
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").
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.
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.
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.
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.
Category 2 Requests (other than Deemed Category 1 Requests):
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.
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.
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.
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.
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.
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.
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.
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.
Category 3 Requests:
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.
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.
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.
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.
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-HQ11
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
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
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 upon X
request to the Master Servicer
Request delivery of files from Trustee upon request and certification of X
Primary 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
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
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 the X
related maturity date
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
8. Escrows
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
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 rolls X
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 X X
Financial File in accordance with Section 2.1(c)(viii) of 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 Modification Report X
Loan Level Reserve Report X
Total Loan Report X
11. Advancing
Determination of Non-Recoverability X
12. Borrower Inquiries/Performing Loans
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
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
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 2 Request) X
Consent to modification and waivers and other consents (not otherwise provided X
in 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, X
Forbearances and Casualties
Condemnation (only with respect to Specially Serviced Mortgage Loans the Special Servicer X X X
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 X
Servicing Accounts Reconciliation Certification in the form of 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 X
and 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 X
inspection but not later than December 15 of each year beginning in 2007
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
16. Preparation of servicing transfer letters X
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting requirements) X
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 Form 10-D X
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 forth in X
Section 5.13(c) of this Primary Servicing Agreement
20. Provide either (a) a report regarding Primary Servicer's assessment of compliance with X
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 manner set X
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 holders X
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-HQ11
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
CAPMARK FINANCE INC., acting solely in its capacity as Master Servicer
("Master Servicer"), under the Pooling and Servicing Agreement dated as of
February 1, 2007 (the "Pooling and Servicing Agreement") and a Primary Servicing
Agreement dated as of February 1, 2007 (the "Primary Servicing Agreement"), in
each case relating to the Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11, does hereby nominate, constitute and appoint Principal Global
Investors, LLC ("PGI"), 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 PGI to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by PGI of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto PGI 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 PGI 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 ______________.
CAPMARK FINANCE INC., 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: Principal Global Investors, LLC
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11
Pursuant to the Primary Servicing Agreement between Capmark Finance
Inc. ("Capmark") and Principal Global Investors, LLC ("Primary Servicer") for
the transaction referenced above, I hereby certify with respect to each mortgage
loan serviced by Primary Servicer for Capmark 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, Principal Global Investors, LLC
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 Pooling and Servicing Agreement dated as of
Agreement: _______, ___, among __________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________,
___, between Capmark Finance Inc., as master
servicer, and ______________, as Primary
Servicer.
Master Servicer: Capmark Finance Inc.
Primary Servicer: _______________________________________________
Primary Servicer Contact [Name][telephone][facsimile][email address]
Person:
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 Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
February 1, 2007, between Primary Servicer and Capmark Finance Inc., as master
servicer (the "Master Servicer") relating to the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11.
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.
PRINCIPAL GLOBAL INVESTORS, LLC
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: Principal 40% - $
Capmark, Master Serv. 10% - $
JER, 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:
1. 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.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. 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
4. 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);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
2 of Appendix 2
7. 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.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
3 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:
X.X. XXXXXX COMPANY, INC., acting
solely in its capacity as Special
Servicer
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
4 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
5 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:
X.X. XXXXXX COMPANY, 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:
Capmark Finance Inc., 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 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
Capmark Finance Inc., as Master Servicer
X.X. Xxxxxx Company, Inc., as Special Servicer
LaSalle Bank National Association,
as Certificate Registrar, Paying Agent and Authenticating Agent
Xxxxx Fargo 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-HQ11, 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(4) 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]
----------
(4) [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-HQ11, CLASS ___ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Trustee and Custodian
Attn: Mortgage & Corporate Trust Services
LaSalle Bank National Association, as Paying Agent, Certificaet Registrar
and Authenticating Agent
Attn: Coporate Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
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 February 1, 2007 (the "Pooling and Servicing
Agreement") among both of you, Xxxxxx Xxxxxxx Capital I Inc., X.X. Xxxxxx
Company, Inc. and Capmark Finance Inc., 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
MORTGAGE MORTGAGE CUT-OFF DATE EXCESS SERVICING
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE FEE RATE
--------------------------------------------------------------------------------------------------------------------
22 06-04-0330 LaSalle CoBank Building $21,000,000 5.00
23 06-28779 MSMC Platinum Portfolio - Eastpointe Shopping Center $ 8,400,000 5.00
23 06-28774 MSMC Platinum Portfolio - Xxxxxxx Xxxxx Building $ 4,800,000 5.00
23 06-28776 MSMC Platinum Portfolio - Platinum Plaza / Centra Bank $ 3,550,000 5.00
Building
23 06-28777 MSMC Platinum Portfolio - Eastpointe Business Park $ 3,450,000 5.00
23 06-28775 MSMC Platinum Portfolio - Suncrest Corporate Center $ 800,000 5.00
25 06-02-0187 LaSalle 000 Xxxxxx Xxxxxx Xxxx $20,500,000 4.00
29 06-07-0610 LaSalle Xxxxx Plaza $16,700,000 5.00
43 06-08-0428 LaSalle NNN Westpoint I $15,125,000 2.00
48 06-04-0398 LaSalle Market Place Properties $14,000,000 5.00
53 06-28730 MSMC Hilton Garden Inn - The Woodlands $12,139,283 2.00
59 06-27795 MSMC 000 Xxxxxxxxxx Xxxxxx $ 9,900,000 3.00
63 06-27585 MSMC 000 Xxxxx Xxxxxx $ 9,100,000 5.00
66 06-29275 MSMC Hayden Place $ 9,000,000 4.00
80 06-09-0761 LaSalle Westchester Market $ 8,111,325 5.00
82 06-08-0344 LaSalle Chesapeake Office $ 8,000,000 3.00
81 06-08-0456 LaSalle Sand Creek Business Center $ 8,000,000 10.00
83 06-04-0135 LaSalle Hampton Inn - Cranberry Township $ 7,936,155 1.00
88 06-29263 MSMC Franklin Village $ 6,750,000 5.00
90 06-08-0771 LaSalle Holiday Inn Express - Orangeburg $ 6,691,024 8.00
93 00-00000 XXXX Xxxxxxxxx Xxxxxx Xxxxxx $ 6,300,000 10.00
95 06-28524 MSMC Mission Creek Apartments $ 6,000,000 5.00
97 06-09-0772 LaSalle Arlington Towne Centre $ 5,864,174 5.00
99 06-07-0661 LaSalle 000 Xxxxx Xxxxx Xxxxx $ 5,600,000 5.00
100 06-28818 MSMC Hampton Inn - Brookhollow $ 5,595,148 2.00
106 06-27772 MSMC Ramada Inn - Phoenix $ 5,395,334 10.00
110 06-04-0457 LaSalle Comfort Inn - Wilmington, NC $ 5,278,478 8.00
112 06-09-0770 LaSalle Country Brook Village $ 5,233,693 5.00
118 06-26350 MSMC Xxxxxxx at Lone Tree $ 4,800,000 5.00
122 06-27640 MSMC Best Western - Kansas City $ 4,637,448 5.00
129 06-28914 MSMC Aberdeen Townhomes $ 4,160,000 10.00
131 06-27639 MSMC Sunset Plaza $ 3,989,354 5.00
133 06-27122 MSMC Starmount Shopping Center $ 3,790,193 10.00
134 00-00000 XXXX Xxxxxx Xxxxxx $ 3,725,000 10.00
135 06-29272 MSMC Cranberry Crossings $ 3,725,000 5.00
136 06-26374 MSMC DePaul Medical Office Building $ 3,587,183 10.00
153 06-25924 MSMC Home Depot Outlots - Plymouth $ 2,250,000 5.00
163 06-07-0401 LaSalle DoMar Properties $ 1,797,008 10.00
I-2
EXECUTION VERSION
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I (LASALLE)
--------------------------------------------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
between
LASALLE BANK NATIONAL ASSOCIATION
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of February 15, 2007
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 4
2. CONVEYANCE OF MORTGAGE LOANS......................................... 4
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER............................................................... 17
6. CLOSING.............................................................. 21
7. CLOSING DOCUMENTS.................................................... 22
8. COSTS................................................................ 25
9. NOTICES.............................................................. 25
10. SEVERABILITY OF PROVISIONS........................................... 25
11. FURTHER ASSURANCES................................................... 26
12. SURVIVAL............................................................. 26
13. GOVERNING LAW........................................................ 26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT......................... 26
15. MISCELLANEOUS........................................................ 26
16. ENTIRE AGREEMENT..................................................... 27
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 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
Defective Mortgage Loan................................................... 17
Final Judicial Determination.............................................. 20
Indemnification Agreement................................................. 14
Initial Purchaser......................................................... 2
Master Servicer........................................................... 2
i
Material Breach........................................................... 16
Material Document Defect.................................................. 16
Memorandum................................................................ 3
MERS...................................................................... 5
Mortgage File............................................................. 4
Mortgage Loan Schedule.................................................... 3
Mortgage Loans............................................................ 2
Officer's Certificate..................................................... 8
Other Mortgage Loans...................................................... 2
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
2
MORTGAGE LOAN PURCHASE AGREEMENT
(LASALLE LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
February 15, 2007, between LaSalle Bank National Association (the "Seller"), 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 February 1, 2007, between Purchaser, as
depositor, Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company, Inc.,
as special servicer ("Special Servicer"), Xxxxx Fargo Bank, National
Association, as trustee and custodian ("Trustee") and LaSalle Bank National
Association, as paying agent, certificate registrar and authenticating agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 (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 Capmark Finance Inc. 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-3-1, Class A-3-2, Class
A-AB, Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class
C, Class D, Class E and Class F Certificates (the "Public Certificates") will be
sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, LaSalle Financial
Services, Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (other than with respect to the Class A-4 Certificates)
(the "Underwriters"), pursuant to an Underwriting Agreement, between Purchaser
and the Underwriters, dated February 15, 2007 (the "Underwriting Agreement"),
and the Class X, 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 February 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated February 6, 2007, as supplemented by a Prospectus Supplement dated
February 15, 2007 (together with the Prospectus, 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 February 15, 2007 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
3
AGREEMENT TO PURCHASE.
Seller agrees to sell, and Purchaser agrees to purchase, on a servicing released
basis, subject to certain agreements regarding servicing as provided in the
Pooling and Servicing Agreement, sub-servicing agreements in existence as of the
Closing Date and the servicing rights purchase agreement, 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 February 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 $394,318,700. The sale of the Mortgage Loans shall take place on
February 28, 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
on Exhibit 3 hereto. 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, subject to certain
agreements regarding servicing as provided in the Pooling and Servicing
Agreement, sub-servicing agreements in existence as of the Closing Date and the
servicing rights purchase agreement, and with the understanding that a Servicing
Rights Purchase and Sale Agreement, dated February 1, 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 5 in
favor of Trustee, Master Servicer and Special Servicer to empower Trustee,
Master Servicer and, in the event of the 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
4
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 Xxxxx Fargo
Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11, 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 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;
5
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 "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," 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;
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
6
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 "Xxxxx Fargo Bank, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11," 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 or an agreement to provide any of the
foregoing pursuant to binding escrow instructions executed by the title company
or its authorized agent, with the original title 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 original) of the mortgage
note evidencing the related B Note), if any, related to any Mortgage Loan;
7
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, the 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.
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.
8
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, assignment of
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) or an
Officer's Certificate of the Seller stating that such document has been sent to
the appropriate public recording office for recordation, 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 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.
9
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 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 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
Mortgagor/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, worksheets, memoranda,
communications, evaluations or data. Delivery of any of the foregoing documents
to Primary Servicer shall be deemed a delivery to 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
10
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
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, Sections 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,
11
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 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 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 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, each 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
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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 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 as of
the date hereof (or as of such
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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 national banking
association in good standing under the laws of the United States. 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 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
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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 LaSalle Mortgage Loan Information (as defined in
that certain indemnification agreement, dated February 15, 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
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.
For so long as the Trust is subject to the reporting requirements of the
Exchange Act, Seller shall provide Purchaser (or with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, the
depositor in such Other Securitization) and the Paying Agent with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure set forth next to
Seller's name on Schedule XV and Schedule XVI of the Pooling and Servicing
Agreement within the time periods set forth in the Pooling and Servicing
Agreement.
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.
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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 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.
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Purchaser has not dealt with any broker, investment banker, agent or other
person, other than Seller, the Underwriters, the Initial Purchasers 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.
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
17
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 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
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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.
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
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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 the Trust 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 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, to the extent set forth in 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, then 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
20
repurchased after the date that is 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 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.
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.
21
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:
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 LaSalle 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 none of
the Initial Purchasers shall have terminated the Certificate Purchase Agreement,
and neither the Underwriters nor the Initial Purchasers 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:
22
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) 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.
An original or copy of a certificate of existence for Seller from the
Comptroller of the Currency 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 the law of the United States and has the
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
23
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.
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 reasonably 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
24
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 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 4.
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 LaSalle Bank National Association, Real Estate Capital Markets, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx,
Telecopy No.: (000) 000-0000; Telephone No.: (000) 000-0000, with a copy to
LaSalle Bank Corporation, Legal Department, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Telecopy No.: (312)
000-0000, Telephone No.: (000) 000-0000.
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.
25
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 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
26
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 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.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director-Structure Products
Real Estate Capital Markets
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE MATURITY DATE
---------------------------------------------------------------------------------------------------------------------------------
00 XxXxxxx Xxxxxxxxx Xxxxx Center 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 01/01/2017
17 LaSalle 600 West Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 01/01/2017
00 XxXxxxx Xxxx Xxx- Xxxxxxxx (A) 000 Xxxxxxx Xxxxx, XX Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxx Xxx- Xxxxxx XX (A) 0000 Xxxxxx Xxxxxx XX Xxxxx Xxxxxx XX 01/01/2017
20 LaSalle Jade Pig - Harrison (A) 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XX 01/01/2017
21 LaSalle Jade Pig- Kalamazoo D&W (A) 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
22 LaSalle CoBank Building 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 11/01/2013
25 LaSalle 000 Xxxxxx Xxxxxx Xxxx 000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxx Xxxxx 0000-0000 Xxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxx Xxxx Crossing 00000 XxXxxxxx Xxxx Xxxxxx Xxxx XX 09/01/2011
00 XxXxxxx XXX Xxxxxxxxx I 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 12/01/2016
45 LaSalle Foothill Ranch 41 & 00 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxxxx Xxxx Apts 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxx Xxxxx Properties 00000 Xxx Xxxx Xxxxxxxx Xxxxxxx XX 09/01/2016
52 LaSalle Flying Flags RV Park 180 Avenue of the Flags Buellton CA 12/01/2016
00 XxXxxxx Xxxx Xxxxxx Plaza 000 Xxxxx Xxxx Xxxxxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxx Xxxxxxx Shopping Center 0000-0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxxxx II 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxxxxxxx Xxxxxx 0000, 4136, 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 01/01/2017
Parkway
00 XxXxxxx Xxxx Xxxxx Xxxxxxxx Xxxxxx 000-000 Xxxx Xxxxx Xxxx Xxxxxxxxx XX 12/01/2016
82 LaSalle Chesapeake Xxxxxx 0000 & 0000 Xxxxxxxxxx Xxxxx Xxxxxxx Xxxx XX 12/01/2016
00 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxx Xxxxx 000 X Xxxxxx Xxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxxx 000 Xxxxx Xxx Xxxx Xxxxxxxxxx XX 01/01/2017
92 LaSalle Independence Plaza 000 Xxxx Xxxxxx Xxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
CUT-OFF
MORTGAGE DATE ORIGINAL TERM REMAINING TERM ORIGINAL MORTGAGE
LOAN NO. BALANCE NOTE DATE TO MATURITY TO MATURITY AMORT. TERM RATE ARD LOAN
---------------------------------------------------------------------------------------------------
11 $45,949,650 12/11/2006 120 119 360 5.500% No
17 $26,500,000 12/15/2006 120 119 360 5.610% No
18 $11,738,758 12/15/2006 120 119 360 5.400% No
19 $ 6,144,063 12/15/2006 120 119 360 5.400% No
20 $ 3,891,740 12/15/2006 120 119 360 5.400% No
21 $ 3,201,307 12/15/2006 120 119 360 5.400% No
22 $21,000,000 10/17/2006 84 81 IO 6.180% No
25 $20,500,000 12/04/2006 120 119 360 6.280% No
29 $16,700,000 12/07/2006 120 119 360 5.680% No
42 $15,800,000 04/27/2006 64 55 IO 6.260% No
43 $15,125,000 11/29/2006 120 118 360 6.143% No
45 $14,600,000 12/05/2006 120 119 360 6.180% No
47 $14,000,000 11/27/2006 120 118 360 5.850% No
48 $14,000,000 09/01/2006 120 115 360 5.970% No
52 $12,278,024 11/29/2006 120 118 360 5.720% No
54 $12,000,000 12/01/2006 120 118 IO 5.620% No
65 $ 9,000,000 12/01/2006 120 118 IO 5.620% No
72 $ 8,700,000 11/20/2006 120 118 360 6.280% No
77 $ 8,200,000 12/08/2006 120 119 360 6.153% No
80 $ 8,111,325 12/07/2006 120 119 360 6.030% No
81 $ 8,000,000 11/30/2006 120 118 360 5.850% No
82 $ 8,000,000 11/03/2006 120 118 360 5.900% No
83 $ 7,936,155 11/30/2006 120 118 360 5.820% No
89 $ 6,700,000 12/01/2006 120 118 IO 5.620% No
90 $ 6,691,024 12/06/2006 120 119 300 5.750% No
92 $ 6,300,000 11/30/2006 120 118 IO 5.560% No
97 $ 5,864,174 12/07/2006 120 119 360 6.030% Xx
0-0
00 XxXxxxx Xxxxx Xxxxx 000-000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 12/01/2016
99 LaSalle 000 Xxxxx Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx XX - Xxxx Xxxxxxx Xxxxxxxx, XX 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 11/01/2016
104 LaSalle Wildrose 9116 & 0000 Xxxxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx Xxxxxx Xxxxxx Colony 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx XX 12/01/2016
000 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxxx, XX 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 11/01/2016
111 LaSalle Euronet Building 00000 Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XX 01/01/2017
000 XxXxxxx Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxxxxx XX 01/01/2017
000 XxXxxxx Xxxxxxx Xxx - Xxxxxx, XX 000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx 0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx XX 01/01/2017
000 XxXxxxx Xxx Xxxxx Retail 0000 Xxxx Xxxxx Xxxx Xxxxx Xxx Xxxxx XX 12/01/2011
163 LaSalle DoMar Properties 3815, 3827, & 0000 0xx Xxxxxx Xxxxxxxxxx XX 12/01/2016
South
98 $ 5,750,000 12/01/2006 120 118 IO 5.560% No
99 $ 5,600,000 11/17/2006 120 118 360 5.930% No
101 $ 5,569,570 10/19/2006 120 117 240 6.960% No
104 $ 5,490,073 11/27/2006 120 118 360 5.680% No
105 $ 5,440,000 11/30/2006 120 118 360 5.900% No
110 $ 5,278,478 10/31/2006 120 117 300 5.940% No
111 $ 5,245,274 12/04/2006 120 119 360 5.680% No
112 $ 5,233,693 12/07/2006 120 119 360 6.030% No
114 $ 5,087,352 11/20/2006 120 118 300 6.160% No
120 $ 4,721,032 12/07/2006 120 119 360 5.950% No
155 $ 2,175,000 11/21/2006 60 58 360 6.390% No
163 $ 1,797,008 11/28/2006 120 118 360 6.000% No
1-2
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 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 Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of 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 (other than with
respect to certain agreements relating to servicing rights and the rights of a
holder of a related companion loan pursuant to a co-lender or other agreement);
provided that recording and/or filing of various transfer documents are to be
completed after the Closing Date as contemplated hereby and by the Pooling and
Servicing Agreement. Upon the consummation of the transactions contemplated by
this Agreement, Seller will have validly and effectively conveyed to 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 (other than
with respect to certain agreements relating to servicing rights and the rights
of a holder of a related companion loan pursuant to a co-lender or other
agreement); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to Purchaser or
its designee does not require Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
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 (12) month period
(or since the date of origination of the Mortgage Loan if the Mortgage Loan was
originated within the past twelve (12) months) immediately preceding the Cut-Off
Date, in each case, without giving effect to any applicable grace period.
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, ground rents, water
charges, sewer rents 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 Title Insurance Policy (or if not
yet issued, referred to in a pro forma title policy, a "marked-up" commitment
binding upon the title insurer or escrow instructions binding on the title
insurer and irrevocably obligating the
2-1
title insurer to issue such title insurance policy), (c) exceptions and
exclusions specifically referred to in such Title Insurance Policy (or if not
yet issued, referred to in a pro forma title policy, a "marked-up" commitment
binding upon the title insurer or escrow instructions binding on the title
insurer and irrevocably obligating the title insurer to issue such title
insurance policy), (d) other matters to which like properties are commonly
subject, (e) rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property, (f) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan and (g) if the related Mortgaged Property
consists of one or more units in a condominium, the related condominium
declaration, none of which matters referred to in clauses (b) through (g),
individually or in the aggregate, materially and adversely interferes with the
security intended to be provided by such Mortgage, the marketability or current
use of the Mortgaged Property or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt (the
foregoing items (a) through (g) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of Trustee is in recordable form (but for insertion of the names and
addresses of the assignee and any related recording information which is not yet
available to Seller) 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 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 and 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 (either as
a separate instrument or as part of the Mortgage) 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 except that a license may have been granted to the related Mortgagor by the
related lender to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property so long as no event of default has
occurred under such Mortgage Loan, 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 Trustee and
is in recordable form (but for insertion of the name and address of the assignee
and any related recording information which is not yet available to Seller) and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named
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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 (beyond applicable notice and grace
periods) under the Mortgage Loan, the appointment of a receiver for the
collection of rents or for the related mortgagee to enter into possession of the
related Mortgaged Property 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 January 31, 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 within eighteen (18) months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's
knowledge, free and clear of any damage (or a letter of credit 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 within
eighteen (18) months prior to the Cut-Off 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 a letter of
credit 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. As of the Closing Date, 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 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, (x)
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, (y) 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, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
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8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment or escrow
instructions binding on the title insurer irrevocably obligating the title
insurer to issue such title insurance policy (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, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, the security
interest in each of which parcel is granted by a Mortgage and such Mortgage (and
therefore the related Title Policy) may be in an amount less than the original
principal amount of the Mortgage Loan, but such Mortgages, in the aggregate, are
not less than the total original principal amount of the Mortgage Loan, and
provided that such amount is at least equal to the allocated Mortgage Loan
amount, as evidenced by the Mortgage Loan documents. 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 Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of Trustee without the consent of, or notice to, the insurer. To
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.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed (for the avoidance of doubt, amounts held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property will be
considered fully disbursed and will not be considered an exception to this
representation) 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 and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note, Mortgage or other Mortgage
Loan documents 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 or has been substituted in accordance
with the Mortgage and applicable law, and (2) no fees or expenses are payable to
such trustee by Seller, Purchaser or any transferee thereof except in connection
with a trustee's sale after default by the related Mortgagor or in
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connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an "Environmental
Report") has been delivered to Purchaser, and Seller has no knowledge
of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. The Mortgage Loan documents for each Mortgage
Loan require the related Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations. Where
such Environmental Report 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, (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated,
(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, (iv) the related mortgagor, or other responsible party, provided
a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable federal, state or local government authorities had no
current intention of taking any action, and are not requiring any
action, in respect of such conditions or circumstances, (v) such
conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant
recommended no further investigation or remediation, (vi) the
expenditure of funds reasonably estimated to be necessary to effect
such remediate is not greater than 2% of the outstanding principal
balance of the related Mortgage Loan, and the Mortgagor or other
responsible party has agreed to undertake the remediation, (vii) there
exists an escrow of funds reasonably estimated to be sufficient for
purposes of effecting such remediation and not less than 125% of the
estimated cost thereof, (viii) a responsible party provided a guaranty
or indemnity to the related Mortgagor to cover the costs of any
required investigation, testing, monitoring or remediation, (ix) the
related Mortgagor or one of its affiliates is currently taking or
required to take such actions (that may be the implementation of an
operations and maintenance plan) with respect to such conditions or
circumstances or have been recommended by the environmental site
assessment or required by the applicable governmental authority and
the Mortgagor or other responsible party has agreed to be responsible
for such required actions, the remaining cost of which does not exceed
2% of the outstanding principal balance of the Mortgage Loan or (x)
the
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circumstance or condition has been fully remediated based on a report
from a qualified environmental consultant. 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) standards.
Each Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C (the
"Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on Schedule A
to this Exhibit 2, with respect to each Schedule C Loan, (i) to
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) A PROPERTY CONDITION OR ENGINEERING REPORT
WAS PREPARED WITH RESPECT TO LEAD BASED PAINT ("LBP") AND RADON GAS
("RG") AT EACH MORTGAGED PROPERTY THAT IS USED AS A MULTIFAMILY
DWELLING, AND WITH RESPECT TO ASBESTOS CONTAINING MATERIALS ("ACM") AT
EACH RELATED MORTGAGED PROPERTY AND (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG environmental
condition or circumstance affecting the related Mortgaged Property,
the related Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide additional
security, or establish with the lender a reserve from loan proceeds,
in an amount deemed to be sufficient by Seller for the remediation of
the problem and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of the
Mortgage Loan, (iii) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or circumstance affecting
the Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through
the maturity of the policy's term and the term of such policy extends
at least five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM Standards issued sometime within 18 months prior to the
Cut-Off 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 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
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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 Seller nor, to 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 or material 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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. Sections
1251 et seq.), the Clean Air Act as amended (42 U.S.C. Sections 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 or any guarantor of any
non-recourse exceptions and environmental liability 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 (a)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by (b) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law but (subject to
the limitations set forth in the foregoing clauses (a) and (b)) such limitations
or unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. 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 that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premium
or yield maintenance charges.
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
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the
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lesser of the outstanding principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to twelve (12) months
of operations of the Mortgaged Property estimated as of the date of origination
by the originator of such Mortgage Loan consistent with its capital markets
conduit lending practices; (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. Each
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, reduction of coverage or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage, except as set
forth in the first sentence of this paragraph 14, 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 (or at
the lender's option 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 average return period 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 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 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:
2-8
(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 Seller and related lessor) does
not prohibit the current use of the 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
Purchaser and Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required for assignment to Purchaser, it has been obtained prior to
the Closing Date) and is further assignable by 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 either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, Seller
has received no notice that an event of default has occurred
thereunder, and, to 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 (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 (20)
years beyond the Maturity Date of the related Mortgage Loan;
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(viii) Under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, 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 appointed or consented to 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; and
(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
2-10
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.
21. Advancement of Funds by 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 (other
than (a) amounts paid by a tenant as specifically provided under a related lease
or by the property manager or (b) application and commitment fees, escrow funds,
points and reimbursements for fees and expenses incurred in connection with the
origination and funding of the 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 that were bonded
or escrowed for or 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 that were bonded or escrowed for or insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or
is exempt from) all applicable usury laws and any other applicable material 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 or objectively determinable 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. Section 1.1001-3 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 reasonable cost of such opinion.
2-11
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
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. Neither Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. To 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 giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan (other than payments due but not yet thirty (30) days or more
delinquent), 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 Seller elsewhere in this Exhibit 2 or the
exceptions listed in Schedule A attached hereto.
28. Inspections. Seller (or if 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 upon a letter from governmental
authorities, a legal opinion, a zoning consultant's report or an endorsement to
the related Title Policy, or based on such other 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 are in material compliance 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 Seller hereunder or any such material
non-compliance with such applicable zoning laws is insured by the Title Policy
or a law and ordinance insurance policy.
30. Junior Liens. Except with respect to the lien securing another
Mortgage Loan cross-collateralized and cross-defaulted with the Mortgage Loan,
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. Except with respect to the above, 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 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
2-12
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. The servicing and collection practices used by Seller
or 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 Seller's knowledge, based on (a) a letter
from governmental authorities, (b) a legal opinion, (c) an endorsement to the
related Title Policy, (d) a zoning report from a zoning consultant or (e) other
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 Seller hereunder, the related
Mortgagor, the related lessee, franchisee or operator 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 or such material licenses, permits and franchises have otherwise been
issued and are in effect.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED
LIVING FACILITY].
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
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 other than by reason of
family and estate planning transfers, transfers by devise or descent or by
operation of law upon death, transfers of less than a controlling interest in
Mortgagor, transfers of shares in public companies, issuance of non-controlling
new equity interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan documents, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors with
respect to cross collateralized Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Mortgagors, transfers of worn out or obsolete furniture,
furnishings or equipment or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan documents; 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
2-13
effect that it was formed or organized or as of the Mortgage Loan's closing date
was amended to be 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
or material misrepresentation by the Mortgagor, misappropriation of rents,
insurance proceeds, condemnation awards and breaches of the environmental
covenants in the Mortgage Loan documents.
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 the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is at least two (2) years after the Closing Date, (ii) 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
2-14
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
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. 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 Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not 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 in certain cases 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 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 Mortgagor in any intentional fraud in connection
with the origination of the Mortgage Loan. To Seller's knowledge, no Mortgagor
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. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to
2-15
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. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-16
SCHEDULE A TO EXHIBIT 2
Exceptions to Representations and Warranties
EXCEPTION TO REPRESENTATIONS (4) AND (8)
MORTGAGE LOAN EXCEPTION
----------------------------------- ------------------------------------------
00 Xxxxx Xxxxx The Mortgaged Property is subject to a
right to purchase in favor of the ground
lessor. If the ground lessor exercises its
purchase option, the ground lessor is
obligated to assume the Mortgage Loan in
accordance with the terms and conditions
of the Mortgage Loan documents.
EXCEPTIONS TO REPRESENTATION (12)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
All LaSalle Loans The Mortgage Loan documents for each
Mortgage Loan only require the related
Mortgagor to comply in all material
respects with all applicable federal,
state and local environmental laws and
regulations.
EXCEPTIONS TO REPRESENTATION (25)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
11 Southaven Towne Center The Mortgage Loan documents for each
18 Jade Pig-Rockford Mortgage Loan require the mortgagee to
19 Jade Pig -Breton (SC) grant releases of portions of each
20 Jade Pig - Xxxxxxxx respective Mortgaged Property subject to
21 Jade Pig - Kalamazoo D&W the terms and conditions set forth in the
82 Chesapeake Office respective Mortgage Loan documents.
18 Jade Pig-Rockford The Mortgaged Properties are
19 Jade Pig -Breton (SC) cross-collateralized and cross-defaulted.
20 Jade Pig - Xxxxxxxx At any time after December 15, 2007 and
21 Jade Pig - Kalamazoo D&W before January 1, 2016, up to 2 Mortgaged
Properties may be substituted (and the
mortgage lien encumbering such Mortgaged
Properties released) upon satisfaction of
certain terms and conditions set forth in
the respective Mortgage Loan documents.
42 Orland Park Crossing The Mortgaged Property is comprised of
multiple parcels. Any parcel may be
substituted for another parcel (and the
mortgage lien encumbering such parcel
released) upon satisfaction of certain
terms and conditions set forth in the
Mortgage Loan documents.
EXCEPTIONS TO REPRESENTATION (31)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
43 NNN Westpoint There is a pending SEC investigation
77 Northwoods II against the principal of a Mortgagor. The
investigation does not address either
Mortgaged Property. A guaranty was
executed for each Mortgage Loan by such
principal to indemnify the holder of each
Mortgage Loan from any losses resulting
from such investigation.
97 Arlington Towne Center There is a pending lawsuit against
Mortgagor seeking remediation of alleged
violations of the Americans with
Disabilities Act. Funds were escrowed at
the closing of the Mortgage Loan, in an
amount equal to 110% of the estimated cost
to complete the work, in order to correct
the alleged violations. Additionally, a
non-recourse carveout was added for any
losses suffered by the holder of the
Mortgage Loan in the event that Mortgagor
fails to comply with the Americans with
Disabilities Act.
EXCEPTIONS TO REPRESENTATION (36)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
25 000 Xxxxxx Xxxxxx Xxxx The Mortgage Loan documents permit the
equity owners of Mortgagor to obtain
future mezzanine debt subject to the
satisfaction of certain conditions set
forth in the Mortgage Loan documents.
EXCEPTIONS TO REPRESENTATION (37)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
47 Brighton Park Apartments Each Mortgagor was not formed solely for
00 Xxxxxx Xxxxx Properties the purpose of owning and operating its
respective Mortgaged Property, however, as
of the origination of the Mortgage Loan
the organizational documents of each
Mortgagor were amended to provide
substantially to the effect that the sole
purpose of each Mortgagor shall be limited
to the ownership and operation of its
respective Mortgaged Property.
EXCEPTIONS TO REPRESENTATION (38)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
All LaSalle Loans Generally, the Mortgage Loan documents do
not have a non-recourse carveout for
"fraud or willful
material misrepresentation," but the
Mortgage Loan documents do include a
non-recourse carveout for "fraud, willful
misconduct or material misrepresentation".
11 Southaven Towne Center With respect to each Mortgage Loan, no
22 Co Bank Building natural person is liable for the
00 Xxxxx Xxxxx non-recourse carveouts.
42 Orland Park Crossing
43 NNN Westpoint
77 Northwoods II
17 600 West Xxxxxx The Mortgage Loan documents do not include
a non-recourse carveout for "fraud or
willful misrepresentation" or
"misappropriation of rents, insurance
proceeds or condemnation awards", but the
Mortgage Loan documents do include a
non-recourse carveout for "fraud, willful
misconduct or material intentional
misrepresentation and "willful material
misappropriation or conversion of rents
received after and during the continuance
of an event of default, insurance proceeds
or condemnation awards".
00 XXX Xxxxxxxxx The respective Mortgage Loan documents do
77 Northwoods II not include a non-recourse carveout for
"fraud or willful misrepresentation", but
the respective Mortgage Loan documents do
include a non-recourse carveout for
"fraud, willful misconduct or material
intentional misrepresentation".
EXCEPTIONS TO REPRESENTATION (43)
MORTGAGE LOANS EXCEPTIONS
----------------------------------- ------------------------------------------
11 Southaven Towne Center Each Mortgagor is required to maintain
18 Jade Pig-Rockford terrorism insurance coverage only to the
19 Jade Pig -Breton (SC) extent that the premium for such coverage
20 Jade Pig - Xxxxxxxx does not exceed 150% of the then current
21 Jade Pig - Kalamazoo D&W aggregate amount of all insurance
premiums.
SCHEDULE B TO EXHIBIT 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-----------------------------------------------------------------------------------------------------------------------------
00 XxXxxxx Xxxx Xxx- Xxxxxxxx $11,738,758 Jade Pig Ventures-Rockford, L.L.C. Xxxxx X. XxXxxxx
00 XxXxxxx Xxxx Xxx- Xxxxxx XX $ 6,144,063 Jade Pig Ventures-Breton Xxxxxxx, L.L.C. Xxxxx X. XxXxxxx
20 LaSalle Jade Pig - Xxxxxxxx $ 3,891,740 Jade Pig Ventures-Xxxxxxxx, L.L.C. Xxxxx X. XxXxxxx
21 LaSalle Jade Pig- Kalamazoo D&W $ 3,201,307 Jade Pig Ventures-Parkview, L.L.C. Xxxxx X. XxXxxxx
SCHEDULE C TO EXHIBIT 2
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $2,445,725,328
Less Expenses $ 4,200,620
--------------
Net Proceeds $2,449,925,948
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,846,030,231
Allocable Expense Amount for MS Loans $ 3,179,813
--------------
Purchase Price of MS Loans $1,849,210,045
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $ 402,997,949
Allocable Expense Amount for LaSalle Loans $ 685,122
--------------
Purchase Price of LaSalle Loans $ 403,683,071
Less Purchase Price of PCF II Loans
Discounted Value of PCF II Loans $ 196,697,148
Allocable Expense Amount for PCF II Loans $ 335,684
--------------
Purchase Price of PCF II Loans $ 197,032,832
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: LaSalle Bank National Association
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 February 15, 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 and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
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 February, 2007.
SELLER: LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
-------------------------
Title:
------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of February 15, 2007 (the "Mortgage Loan Purchase Agreement"), between
LaSalle Bank National Association ("LaSalle") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), LaSalle is selling certain multifamily and commercial mortgage
loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated
as of February 1, 2007 (the "Pooling and Servicing Agreement"), between the
Depositor, Capmark Finance Inc., as Master Servicer, X.X. Xxxxxx Company, Inc.
("JER") as Special Servicer, LaSalle Bank National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent and Xxxxx Fargo Bank, National
Association ("WFB") as Trustee and Custodian, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, LASALLE has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, LaSalle does hereby make, constitute and appoint WFB,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, LaSalle's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in LaSalle's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with respect to the
Mortgage Loans which are customarily and reasonably necessary or appropriate to
assign agreements, documents and instruments pertaining to the Mortgage Loans,
in each case in favor of the Trustee as set forth in the definition of "Mortgage
File" in, and in accordance with Section 1.1 of, the Pooling and Servicing
Agreement, and to evidence, provide notice of and
perfect such assignments and conveyances in favor of the Trustee in the public
records of the appropriate filing and recording offices; and (ii) to file or
record in the appropriate public filing or recording offices, all other Mortgage
Loan documents to be recorded under the terms of the Pooling and Servicing
Agreement or any such Mortgage Loan documents which have not been submitted for
filing or recordation by LaSalle on or before the date hereof or which have been
so submitted but are subsequently lost or returned unrecorded or unfiled as a
result of actual or purported defects therein, in order to evidence, provide
notice of and perfect such documents in the public records of the appropriate
filing and recording offices. Notwithstanding the foregoing, this Limited Power
of Attorney shall grant to WFB and JER only such powers, responsibilities and
authority as are set forth in Section 2.1 of the Mortgage Loan Purchase
Agreement.
LaSalle does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
LaSalle's true and lawful agent and attorney-in-fact with respect to the
Mortgage Loans in LaSalle's name, place and stead solely to exercise and perform
all of the rights, authority and powers of WFB as set forth in the preceding
paragraph in the event of the failure or the incapacity of WFB to do so for any
reason. As between JER and any third party, no evidence of the failure or
incapacity of WFB shall be required and such third party may rely upon JER's
written statement that it is acting pursuant to the terms of this Limited Power
of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as LaSalle's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as LaSalle might or could do if personally present, hereby ratifying
and confirming whatsoever such attorney-in-fact shall and may do by virtue
hereof; and LaSalle agrees and represents to those dealing with such
attorney-in-fact that they may rely upon this Limited Power of Attorney until
termination thereof under the provisions of Article III below. As between
LaSalle, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Trust Fund and the Certificateholders, neither the Trustee nor the Special
Servicer may exercise any right, authority or power granted by this Limited
Power of Attorney in a manner which would violate the terms of the Pooling and
Servicing Agreement, but any and all third parties dealing with either the
Trustee or the Special Servicer as LaSalle's attorney-in-fact may rely
completely, unconditionally and conclusively on the authority of the Trustee or
the Special Servicer, as applicable, and need not make any inquiry about whether
the Trustee or the Special Servicer is acting pursuant to the Pooling and
Servicing Agreement. Any purchaser, title insurance company or other third party
may rely upon a written statement by either the Trustee or the Special Servicer
that any particular Mortgage Loan or related mortgaged real property in question
is subject to and included under this Limited Power of Attorney and the Pooling
and Servicing Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on LaSalle and LaSalle's successors and
assigns.
This Limited Power of Attorney shall continue in full force and effect with
respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
I-2
with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling and
Servicing Agreement;
with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under the
terms of the Pooling and Servicing Agreement;
with respect to the Trustee, the appointment of a receiver or conservator
with respect to the business of the Trustee, or the filing of a voluntary
or involuntary petition in bankruptcy by or against the Trustee;
with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or the
filing of a voluntary or involuntary petition in bankruptcy by or against
the Special Servicer;
with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund;
with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance with its
terms; and
with respect to the Special Servicer, the occurrence of an Event of Default
under the Pooling and Servicing Agreement with respect to the Special
Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties
or obligations of LaSalle under the Mortgage Loan Purchase Agreement, and
nothing herein shall constitute a waiver of any rights or remedies under the
Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY 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.
[Signature on next page]
I-3
IN WITNESS WHEREOF, LaSalle has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
February 28, 2007.
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
I-4
ACKNOWLEDGEMENT
STATE OF )
) ss:
COUNTY OF )
On this 28th day of February, 2007, before me appeared
_______________________, to me personally known, who, being by me duly sworn did
say that he/she is the _____________________ of LaSalle Bank National
Association, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed in behalf of said corporation by authority of its board of directors, and
said __________________ acknowledged said instrument to be the free act and deed
of said corporation.
Name:
--------------------------------
Notary Public in and for said
County and State
My Commission Expires:
_______________________
I-5
EXECUTION VERSION
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II (MSMC)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of February 15, 2007
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 4
2. CONVEYANCE OF MORTGAGE LOANS......................................... 4
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER....................................................... 17
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 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 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
Defective Mortgage Loan.................................................... 17
Final Judicial Determination............................................... 20
Indemnification Agreement.................................................. 14
Initial Purchaser.......................................................... 2
Master Servicer............................................................ 2
i
Material Breach............................................................ 16
Material Document Defect................................................... 16
Memorandum................................................................. 3
MERS....................................................................... 5
Mortgage File.............................................................. 4
Mortgage Loan Schedule..................................................... 3
Mortgage Loans............................................................. 2
Officer's Certificate...................................................... 8
Other Mortgage Loans....................................................... 2
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
2
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
February 15, 2007, between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"),
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 February 1, 2007, between Purchaser, as
depositor, Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company, Inc.,
as special servicer ("Special Servicer"), Xxxxx Fargo Bank, National
Association, as trustee and custodian ("Trustee") and LaSalle Bank National
Association, as paying agent, certificate registrar and authenticating agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 (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 Capmark Finance Inc. 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-3-1, Class A-3-2, Class
A-AB, Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class
C, Class D, Class E and Class F Certificates (the "Public Certificates") will be
sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, LaSalle Financial
Services, Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (except with respect to Class A-4) (the "Underwriters"),
pursuant to an Underwriting Agreement, between Purchaser and the Underwriters,
dated February 15, 2007 (the "Underwriting Agreement"), and the Class X, 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 February 15, 2007
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated February 6, 2007,
as supplemented by a Prospectus Supplement dated February 15, 2007 (together
with the Prospectus, 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 February 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
3
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 February 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 $1,830,126,364. The sale of the
Mortgage Loans shall take place on February 28, 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 on Exhibit 3 hereto. 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 February 1, 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 5 in favor of Trustee, Master Servicer and Special Servicer to
empower Trustee, Master Servicer and, in the event of the 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
4
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 Xxxxx Fargo
Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11, 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 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
5
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 "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," 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;
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
6
of such Assignment of Leases, in recordable form, signed by the holder of record
in favor of "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," 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 or an agreement to provide any of the
foregoing pursuant to binding escrow instructions executed by the title company
or its authorized agent, with the original title 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 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
7
(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, the 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.
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
8
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
assignment of 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) or an
Officer's Certificate of the Seller stating that such document has been sent to
the appropriate public recording office for recordation, 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 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
9
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 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 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
Mortgagor/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, worksheets, memoranda,
communications, evaluations or data. Delivery of any of the foregoing documents
to Primary Servicer shall be deemed a delivery to 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
10
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
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, Sections 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 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
11
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 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 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, each 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
12
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 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 corporation in good
standing under the laws of the State of New York. Seller has the requisite power
and authority and legal right to
13
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 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
14
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 MSMC Mortgage Loan Information (as defined in
that certain indemnification agreement, dated February 15, 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
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.
For so long as the Trust is subject to the reporting requirements of the
Exchange Act, Seller shall provide Purchaser (or with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, the
depositor in such Other Securitization) and the Paying Agent with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure set forth next to
Seller's name on Schedule XV and Schedule XVI of the Pooling and Servicing
Agreement within the time periods set forth in the Pooling and Servicing
Agreement.
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.
15
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 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 Purchasers 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.
16
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.
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
17
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 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
18
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.
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
19
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 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, to the extent set forth in 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, then 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 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.
20
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 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.
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:
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).
21
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 MSMC 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 none of
the Initial Purchasers shall have terminated the Certificate Purchase Agreement,
and neither the Underwriters nor the Initial Purchasers 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) 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.
22
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 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
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.
23
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 copies of the charter, by-laws and certificate
of good standing of Purchaser dated not earlier than 30 days prior to the
Closing Date.
24
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 4.
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 Inc., 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 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
25
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 supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
26
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 INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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
MORTGAGE MORTGAGE MATURITY
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE DATE
------------------------------------------------------------------------------------------------------------------------------------
1 MSMC One Seaport Plaza 000 Xxxxx Xxxxxx Xxx Xxxx XX 01/09/2017
2 MSMC 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 02/08/2017
3 MSMC RREEF Portfolio - Xxxxxx'x 000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 12/08/2011
Crossing (I)
3 MSMC RREEF Portfolio - Lionsgate (I) 00000 Xxxxxx Xxxxxx Xxxxxxx XX 12/08/2011
3 MSMC RREEF Portfolio - University 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 12/08/2011
Heights (I)
3 MSMC RREEF Portfolio - Carlyle Station 00000 Xxxxxx Xxxx Xxxxxxxx XX 12/08/2011
(I)
3 MSMC RREEF Portfolio - XxXxxx Farms (I) 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 12/08/2011
3 MSMC RREEF Portfolio - Fox Run (I) 2 Observation Court Germantown MD 12/08/2011
3 MSMC RREEF Portfolio - Xxxxxxx Station 99 Xxxxxxx Mill Road Gaithersburg MD 12/08/2011
(I)
3 MSMC RREEF Portfolio - The Xxxx (I) 00 Xxxxxxxx Xxx XX Xxxxxxxx XX 12/08/2011
4 MSMC 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 02/11/2017
5 MSMC Galleria at Pittsburgh Xxxxx 000 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 01/08/2012
6 MSMC 000 X'Xxxxxx Xxxxx 000 X'Xxxxxx Xxxxx, Xxxxxxxxxx XX 12/08/2016
SW
7 MSMC Deptford Mall 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 01/05/2013
0 XXXX Xxxxxxxx Xxxxxxxxx Xxxx Center 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx XX 01/05/2014
0 XXXX Xxxxxx Xxxxxxxxx & Towers 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx VA 01/05/2014
12 MSMC The Greens at Green Valley 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 01/08/2012
13 MSMC Casa Xxxxx Plaza 0000-0000 Xxxxx Xxxxxxx Xxxxxx XX 01/01/2014
Xxxxxxxxx
00 XXXX Xxxxxx - Xxxx Xxxx 000 Xx Xxxxxx Xxxx Xxxx Xxxx XX 02/01/2017
15 MSMC Arrowhead Fountains (II) 00000 Xxxxx Xxxxxxxxx Xxxxxx XX 11/08/2013
Fountains Center Drive
15 MSMC Xxxxxxx Office Building (II) 00 Xxxx Xxx Xxxxx Xxxxxx Xxxxxxxxx XX 11/08/2013
ORIGINAL REMAINING ORIGINAL
MORTGAGE CUT-OFF DATE TERM TO TERM TO AMORT. MORTGAGE ARD
LOAN NO. BALANCE NOTE DATE MATURITY MATURITY TERM(9) RATE LOAN
---------------------------------------------------------------------------------
1 $225,000,000 12/20/2006 120 119 IO 5.168% No
2 $172,000,000 01/18/2007 120 120 IO 5.540% No
3 $ 33,104,878 12/08/2006 60 58 IO 5.470% No
3 $ 23,646,341 12/08/2006 60 58 IO 5.470% No
3 $ 22,632,927 12/08/2006 60 58 IO 5.470% No
3 $ 20,437,195 12/08/2006 60 58 IO 5.470% No
3 $ 16,214,634 12/08/2006 60 58 IO 5.470% No
3 $ 9,627,439 12/08/2006 60 58 IO 5.470% No
3 $ 7,431,707 12/08/2006 60 58 IO 5.470% No
3 $ 5,404,878 12/08/2006 60 58 IO 5.470% No
4 $135,000,000 01/22/2007 120 120 IO 5.608% No
5 $133,000,000 12/28/2006 60 59 IO 6.166% No
6 $ 90,000,000 12/08/2006 120 118 IO 5.795% No
7 $ 80,000,000 12/07/2006 72 71 IO 5.323% No
8 $ 69,600,000 12/19/2006 84 83 IO 5.510% No
9 $ 54,400,000 12/12/2006 84 83 IO 5.620% No
12 $ 38,400,000 01/03/2007 60 59 IO 5.720% No
13 $ 37,950,000 12/08/2006 84 83 IO 5.480% No
14 $ 35,000,000 01/03/2007 120 120 300 5.770% No
15 $ 15,000,000 11/08/2006 84 81 IO 6.130% No
15 $ 11,300,000 11/08/2006 84 81 IO 6.130% No
I-1
15 MSMC Sheridan Center (II) 1777, 1780, and 0000 Xxxxx Xxxxxx XX 11/08/2013
Bellaire Street
16 MSMC Crossing Place Apartments 0000 Xxxxxxxx Xxxxx Xxxxxx XX 06/01/2012
23 MSMC Platinum Portfolio - Eastpointe 000-000 Xxxxx Xxxxx Xxxxxxxxxx XX 01/01/2017
Shopping Center (III)
23 MSMC Platinum Portfolio - Xxxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxxxxxxxx XX 01/01/2017
Building (III)
23 MSMC Platinum Portfolio - Platinum 000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 01/01/2017
Plaza / Centra Bank Building (III)
23 MSMC Platinum Portfolio - Eastpointe 105, 109, & 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 01/01/2017
Business Park (III)
23 MSMC Platinum Portfolio - Suncrest 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 01/01/2017
Corporate Center (III)
00 XXXX Xxxx Xxx Retail 979 & 0000 Xxxxx Xxxxxxxxxx Xxxxx XX 12/09/2016
Avenue
00 XXXX Xxxxxxxxx Xxxx Xxxxx 1025 Veterans Parkway Clarksville IN 12/01/2016
28 MSMC Regal Cinema - Lincolnshire 000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 02/01/2017
30 MSMC Pennsylvania Retail Portfolio - Xxxx Xxxx Xxxx Xx & Xxxxx 000 Xxxxxxxx Xxxxxxxx XX 12/01/2016
Weis Xxxx Lake (B)
31 MSMC Pennsylvania Retail Portfolio - 000 Xxxxxx Xx Xxxx xx Xxxx XX 12/01/2016
Staples York (B)
00 XXXX Xxxxxxxxxxxx Retail Portfolio - 000 Xxxxxxxxxxxx Xx Xxxxx PA 12/01/2016
CVS Hockersville (B)
00 XXXX Xxxxxxxxxxxx Retail Portfolio - 000 Xxxxxxxx Xx Xxxx Xxxxxxxx XX 12/01/2016
CVS Edgewood (B)
00 XXXX Xxxxxxxxxxxx Retail Portfolio - 000 Xxxxx Xxxxxxxx Xxx Xxxx XX 12/01/2016
CVS Richland (B)
35 MSMC 000-000 X. Xxxxxxx Xxxx 000-000 X. Xxxxxxx Xxxx Xxxxx XX 11/01/2016
36 MSMC PA-MD Retail Portfolio - Staples 000 Xxxxxxxxxxx Xxxx. Xxxx Xxxxxxxx XX 12/01/2016
Susquehanna (C)
37 MSMC PA-MD Retail Portfolio - CVS 0000 Xxx Xxxxxxxxx Xx Xxxxxxxxxxx XX 12/01/2016
Johnnycake (C)
15 $ 7,200,000 11/08/2006 84 81 IO 6.130% No
16 $ 30,597,806 11/30/2006 66 64 IO 5.710% No
23 $ 8,400,000 12/12/2006 120 119 360 5.700% No
23 $ 4,800,000 12/12/2006 120 119 360 5.700% No
23 $ 3,550,000 12/12/2006 120 119 360 5.700% No
23 $ 3,450,000 12/12/2006 120 119 360 5.700% No
23 $ 800,000 12/12/2006 120 119 360 5.700% No
26 $ 20,200,000 11/17/2006 120 118 360 5.550% No
27 $ 19,400,000 11/06/2006 120 118 360 5.740% No
28 $ 18,125,000 02/01/2007 120 120 360 8.250% No
30 $ 6,482,635 11/30/2006 120 118 420 5.840% No
31 $ 3,096,482 11/30/2006 120 118 420 5.840% No
32 $ 2,856,755 11/30/2006 120 118 420 5.840% No
33 $ 1,962,770 11/30/2006 120 118 420 5.840% No
34 $ 1,957,776 11/30/2006 120 118 420 5.840% No
35 $ 16,000,000 10/20/2006 120 117 360 5.950% No
36 $ 3,915,552 11/30/2006 120 118 420 5.840% No
37 $ 3,875,597 11/30/2006 120 118 420 5.840% No
I-2
38 MSMC PA-MD Retail Portfolio - CVS 000 Xxxxxxxx Xxx. Xxxxx MD 12/01/2016
Xxxxxx (C)
39 MSMC PA-MD Retail Portfolio - CVS 0000 Xxxxxxx Xxxxx Xx Xxxxxxxxx MD 12/01/2016
Hollins Ferry (C)
40 MSMC PA-MD Retail Portfolio - CVS Mt. 000 Xxxx Xxxx Xx. Xxxxx Xxx XX 12/01/2016
Joy (C)
41 MSMC PA-MD Retail Portfolio - Hazleton 0-00 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxx XX 12/01/2016
Plaza (C)
44 MSMC Eureka Pointe Shopping Center 000-000 X. 0xx Xxxxxx Xxxxxx XX 01/01/2017
00 XXXX Xxxxxxxx Xxxx xx Xx. Xxxxxxxxx 0 Xxxxxxxx Xxxxx Xx. Xxxxxxxxx NJ 11/01/2011
00 XXXX Xxxxxxx Xxxxxxxxxx - Xxxxxxxx 000 Xxxx Xxxx Xxxxxxxx XX 02/01/2017
00 XXXX Xxxxxx Xxxxxx Xxx - Xxx Xxxxxxxxx 0000 Xxx Xxxxx Xxxxx Xxxxxx XX 01/01/2017
55 MSMC Shasta Crossroads 1315, 0000-0000 Xxxxx Xxxxx Xxxxxxx XX 10/01/2016
Road
00 XXXX Xxx Xxxx Apartments 000 Xxxx Xxxx Xxxxxx; 000 Xxxxxx Xxxxxx XX 11/01/2016
Vanderbilt Avenue; 000
Xxxxxxxxxx Xxxxxx
57 MSMC Xxxxx Town Center 0000 XX Xxxxxxxx Xxxxx Xxxxxxx XX 07/01/2016
59 MSMC 000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 11/01/2016
60 MSMC Madison Apartments 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 12/01/2013
61 MSMC Xxxxxxxx Xxxxx Xxxxx 000, 000 & 000 X. Xxxxxxxxx Xxxxx XX 01/01/2017
Street and 0000 X. Xxxxxxx
Xxxxxx
62 MSMC 00 Xxxx Xxxxx 0000-0000 Xxxxxxx Xxxxxxx Chantilly VA 12/01/2016
63 MSMC 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx XX 11/01/2011
66 MSMC Hayden Place 000 Xxxx 0xx Xxxxxx Xxxxx XX 01/01/2017
00 XXXX XxxXxxxx - Xxxx Xxxxxxx 000 Xxxxx 00 Xxxx Xxxxxxx XX 12/01/2016
68 MSMC Easton Apartments 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX 12/01/2015
38 $ 2,547,106 11/30/2006 120 118 420 5.840% No
39 $ 2,237,458 11/30/2006 120 118 420 5.840% No
40 $ 2,192,509 11/30/2006 120 118 420 5.840% No
41 $ 1,038,820 11/30/2006 120 118 420 5.840% No
44 $ 14,986,828 12/19/2006 120 119 360 5.778% No
46 $ 14,000,000 10/05/2006 60 57 IO 5.600% No
50 $ 13,493,750 01/09/2007 120 120 360 5.560% No
53 $ 12,139,283 12/29/2006 120 119 360 5.760% No
55 $ 12,000,000 09/12/2006 120 116 360 5.910% No
56 $ 11,500,000 10/12/2006 120 117 IO 5.820% No
57 $ 11,000,000 06/05/2006 120 113 360 6.140% No
59 $ 9,900,000 10/17/2006 120 117 360 5.700% No
60 $ 9,600,000 11/30/2006 84 82 360 5.690% No
61 $ 9,325,000 12/01/2006 120 119 360 5.580% No
62 $ 9,250,000 11/21/2006 120 118 360 5.590% No
63 $ 9,100,000 10/26/2006 60 57 IO 6.090% No
66 $ 9,000,000 12/12/2006 120 119 360 5.680% No
67 $ 8,984,042 11/22/2006 120 118 360 5.750% No
68 $ 8,800,000 02/01/2007 106 106 360 5.530% No
I-3
69 MSMC Maple Valley Commons 27317-27539 Maple Valley-Black Maple Valley WA 05/01/2017
Diamond Road
70 MSMC 0000-0000 Xxxxxxx Xxxxxxxxx 0000-0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 12/01/2016
74 MSMC Carnegie Hotel Resort & Spa 0000 Xxxx Xxxxx xx Xxxxxxxx Xxxxxxx Xxxx XX 00/00/0000
Xxxx
00 XXXX Xxxxxxxxxxx Plaza 00000 Xxxxxxx Xxxxx Xxxxxxxx XX 11/01/2016
00 XXXX Xxxxxxx Xxxxxxx 000 XX 00xx Xxxxxx Xxxxxxxx XX 12/01/2016
78 MSMC Big Springs Village 00000 XX Xxxxxxx 000 Xxxxx Xxxxxxxxxxxx XX 01/01/2017
00 XXXX Xxxxxxx Xxx & Xxxxxx - Xxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx Xxxx XX 12/01/2016
Airport
00 XXXX Xxxxxxxx Xxxxxxx 0000-0000 Xxxxx Xxxxxxxxxx Knoxville TN 11/01/2016
Drive
86 MSMC 0000 Xxx Xxxxxxx & 15 Bay 29th 0000 Xxx Xxxxxxx & 00 Xxx 00xx Xxxxxxxx XX 12/01/2016
Xxxxxx Xxxxxx
00 MSMC Franklin Village 2600-2650 Xxxxxx School Road Wexford PA 01/08/2017
93 MSMC Xxxxxxxxx Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxx XX 12/01/2016
94 MSMC Paulding Station 4795 and 4895 Xxxxx Xxx Xxxxx Xxxxx GA 01/01/2017
Parkway
95 MSMC Mission Creek Apartments 0000 Xxxx Xxx Xxx Xxxxxx XX 12/01/2016
00 XXXX Xxxxxxx Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx Xxxxx Xxxxxxx XX 02/01/2017
100 MSMC Hampton Inn - Brookhollow 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 01/01/2017
103 MSMC Mission Medical Plaza 0000-0000 Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX 01/01/2017
106 MSMC Ramada Inn - Phoenix 00000 Xxxxx 00xx Xxxxx Xxxxxxx XX 01/01/2012
000 XXXX Xxxxxxx Xxxxxx Xxxxxxxxx - Xxxxxxx 000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 12/01/2011
Trail Shopping Center (D)
109 MSMC Orlando Retail Portfolio - Sand 0000 Xxxx Xxxx Xxxx Xxxxxxx XX 12/01/2011
Lake Shoppes (D)
69 $ 8,800,000 10/16/2006 126 123 360 5.930% No
70 $ 8,800,000 11/29/2006 120 118 360 5.590% No
74 $ 8,489,109 12/11/2006 120 119 300 5.980% No
75 $ 8,400,000 10/24/2006 120 117 360 6.030% No
76 $ 8,300,000 11/07/2006 120 118 360 6.060% No
78 $ 8,192,581 12/12/2006 120 119 360 5.660% No
79 $ 8,154,078 11/03/2006 120 118 300 6.000% No
84 $ 7,500,000 10/16/2006 120 117 360 6.180% No
86 $ 7,400,000 11/15/2006 120 118 360 5.760% No
88 $ 6,750,000 12/27/2006 120 119 360 5.740% No
93 $ 6,300,000 11/09/2006 120 118 360 5.940% No
94 $ 6,230,000 12/13/2006 120 119 360 5.710% No
95 $ 6,000,000 11/30/2006 120 118 300 5.700% No
96 $ 6,000,000 01/31/2007 120 120 360 6.020% No
100 $ 5,595,148 12/29/2006 120 119 360 5.830% No
103 $ 5,500,000 12/04/2006 120 119 360 5.640% No
106 $ 5,395,334 12/06/2006 60 59 360 5.840% No
108 $ 3,594,095 11/30/2006 60 58 360 6.050% No
109 $ 1,697,212 11/30/2006 60 58 360 6.050% No
I-4
115 MSMC Hampton Inn - Fultondale 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 11/01/2016
000 XXXX Xxxxxxx Xxxxxx xx Xxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 01/01/2017
117 MSMC 0000 Xxxxx Xxxxxx Self Storage 0000 Xxxxx Xxxxxx Xxxxx XX 12/01/2016
000 XXXX Xxxxxxx at Lone Tree 0000 Xxxx Xxxxxxx Xxxxx Xxxx Xxxx XX 12/01/2016
000 XXXX Xxxxxxxx Apartments 1063 & 0000 X. Xxxxxxxx Xxxxxx Xxxxxxx XX 12/01/2016
000 XXXX Xxxxxxxxx - Xxxxxxxxxxx 0000 X. Xxxx Xxxxxx Xxxxxxxxxxx XX 01/01/2017
000 XXXX Xxxx Xxxxxxx - Xxxxxx Xxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxx XX 11/01/2013
123 MSMC The Calusa Shops 12750-12790 XX 00xx Xxxxxx Xxxxx XX 03/01/2012
000 XXXX Xxxxxxxxxx Mountainside 00000 X. 000xx Xxxxxx Xxxxxxxxxx XX 02/01/2017
000 XXXX Xxxxxxx Center 00000 Xxxxxxxxxxxx Xxxxxx; Xxxxxxx Xxxx XX 01/01/2017
1612-1640 Xxxxxx Avenue
126 MSMC Ormond Business Center 0000-0000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 11/01/2016
000 XXXX Xxxxxxx Xxxx I 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 12/01/2016
129 MSMC Aberdeen Townhomes 0000 Xxxxx Xxxxx Xxxxxxxx XX 12/01/2016
000 XXXX Xxxx Xxxx Mobile Home Park 000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxxxxx XX 01/01/2017
000 XXXX Xxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx XX 11/01/2016
132 MSMC Walgreens - Indianapolis 0000 Xxxxx Xxxxxxxxxxxx Xxxx Fishers IN 11/01/2016
000 XXXX Xxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 11/01/2016
000 XXXX Xxxxxx Xxxxxx 00-000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx XX 12/01/2016
000 XXXX Xxxxxxxxx Xxxxxxxxx 00 Xxxxx Xxxxxxx Xxx Xxxxxxxxx XX 01/08/2017
136 MSMC DePaul Medical Office Building 160 Xxxxxxxx Xxxx Norfolk VA 10/01/2016
137 MSMC Fed Ex Building - Santa Xxxx 0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxx XX 11/01/2016
000 XXXX Xxxxxxx Xxxxxx 0000 Xxxxxxxx Xxx Xxxxxxx XX 12/01/2016
115 $ 5,016,581 10/31/2006 120 117 360 6.000% No
116 $ 4,900,000 12/15/2006 120 119 360 5.580% No
117 $ 4,820,000 11/21/2006 120 118 360 5.730% No
118 $ 4,800,000 11/27/2006 120 118 360 6.190% No
119 $ 4,751,985 11/06/2006 120 118 360 5.950% No
121 $ 4,685,692 12/20/2006 120 119 360 5.600% No
122 $ 4,637,448 10/30/2006 84 81 360 5.950% No
123 $ 4,600,000 02/01/2007 60 60 360 6.110% No
124 $ 4,600,000 01/12/2007 120 120 360 5.690% No
125 $ 4,496,131 12/28/2006 120 119 360 5.860% No
126 $ 4,488,331 10/06/2006 120 117 360 6.120% No
128 $ 4,242,636 11/20/2006 120 118 360 5.840% No
129 $ 4,160,000 11/29/2006 120 118 360 5.600% No
130 $ 4,150,000 12/07/2006 120 119 360 5.650% No
131 $ 3,989,354 10/06/2006 120 117 360 6.010% No
132 $ 3,939,238 10/26/2006 120 117 360 5.910% Yes
133 $ 3,790,193 10/18/2006 120 117 360 6.140% No
134 $ 3,725,000 11/30/2006 120 118 360 5.630% No
135 $ 3,725,000 12/27/2006 120 119 360 5.740% No
136 $ 3,587,183 09/15/2006 120 116 360 5.940% No
137 $ 3,500,000 10/27/2006 120 117 360 5.920% Yes
138 $ 3,440,945 11/22/2006 120 118 300 5.870% No
I-5
139 MSMC Suburban Extended Stay - Louisville 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxxx XX 11/01/2011
000 XXXX Xxxxx 4700 0000 Xxxxx 0000 Xxxx Xxxx Xxxxxx Xxxx XX 09/09/2016
000 XXXX Xxxxxxxxx - Xxxx Xxxxxx 5349 Cypress West Monroe LA 11/01/2016
143 MSMC 00-00/00 Xxxxxx Xxxxxx 00-00/00 Xxxxxx Xxxxxx Xxxxxxxx XX 02/01/2017
144 MSMC Melbourne Xxxxxxx Retail 0000-0000 Xxxxxxx Xxxx Xxxxxxxxx XX 11/01/2016
145 MSMC Yearling Green Apartments 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX 12/01/2016
146 MSMC Research Forest Plaza 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 01/01/2017
147 MSMC Concord-Beacon Apartments 000-000 Xxxxxxx Xxxxxx & 00-00 Xxxxxxxxxx XX 12/01/2016
Beacon Street
148 MSMC Eisenhower Crossing Strip Center 0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx XX 02/01/2017
000 XXXX Xxxxx Xxxxx Mobile Home Park 000 Xxxxx 00xx Xxxxxx Xxxx XX 01/01/2017
150 MSMC Prescott Medical Suites 000 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX 11/01/2011
000 XXXX Xxxx Xxx Xxxxx 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX 11/01/2016
Xxxxxxxxx
000 XXXX Xxxx Xxxxx Xxxxxxx - Xxxxxxxx 0000 & 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX 11/01/2016
156 MSMC The Men's Wearhouse & Verizon 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 11/01/2016
158 MSMC Xxxxxxxx & Kyrene Retail Center 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 01/01/2017
000 XXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxxx Xxxxxx Xxxx XX 01/01/2017
000 XXXX Xxxx Xxxxxxxx Xxxxxxxx II 00000 XX Xxxx Xxxxxxx Xxxx Xxxx XX 11/01/2016
000 XXXX Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 X. Xxxx Xxxxxx Xxxxxx XX 12/01/2016
169 MSMC The Shoppes of Xxxxx Bay 0000 Xxxxxxx 00 Xxxxxxx XX 12/01/2016
000 XXXX Xxxxxxx Xxxx Xxxxx - Xxxxxxx 0000 Xxxxx Xxxx Xxxxxxx XX 01/01/2017
139 $ 3,386,970 10/12/2006 60 57 300 6.260% No
140 $ 3,320,000 09/01/2006 120 115 360 6.190% No
142 $ 3,017,541 10/23/2006 120 117 300 5.870% No
143 $ 3,000,000 02/01/2007 120 120 300 6.030% No
144 $ 2,992,146 10/25/2006 120 117 360 6.080% No
145 $ 2,565,570 11/07/2006 120 118 360 5.860% No
146 $ 2,500,000 12/04/2006 120 119 360 6.100% No
147 $ 2,395,927 11/30/2006 120 118 360 5.920% No
148 $ 2,350,000 01/08/2007 120 120 360 5.720% No
149 $ 2,335,000 12/27/2006 120 119 360 5.840% No
150 $ 2,330,000 10/06/2006 60 57 360 5.890% No
152 $ 2,293,821 10/25/2006 120 117 360 5.970% No
153 $ 2,250,000 11/01/2006 120 117 360 5.970% No
156 $ 2,150,000 10/11/2006 120 117 IO 6.030% No
158 $ 2,040,000 12/18/2006 120 119 360 6.270% No
162 $ 1,947,423 12/07/2006 120 119 300 5.820% No
167 $ 1,496,302 10/27/2006 120 117 360 6.330% No
168 $ 1,480,000 11/30/2006 120 118 360 6.150% No
169 $ 1,118,173 11/29/2006 120 118 360 6.070% No
170 $ 1,099,049 12/20/2006 120 119 360 5.840% No
I-6
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 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 Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of 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 (other than with
respect to certain agreements relating to servicing rights and the rights of a
holder of a related companion loan pursuant to a co-lender or other agreement);
provided that recording and/or filing of various transfer documents are to be
completed after the Closing Date as contemplated hereby and by the Pooling and
Servicing Agreement. Upon the consummation of the transactions contemplated by
this Agreement, Seller will have validly and effectively conveyed to 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 (other than
with respect to certain agreements relating to servicing rights and the rights
of a holder of a related companion loan pursuant to a co-lender or other
agreement); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to Purchaser or
its designee does not require Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
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 (12) month period
(or since the date of origination of the Mortgage Loan if the Mortgage Loan was
originated within the past twelve (12) months) immediately preceding the Cut-Off
Date, in each case, without giving effect to any applicable grace period.
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, ground rents, water
charges, sewer rents 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 Title Insurance Policy (or if not
yet issued, referred to in a pro forma title policy, a "marked-up" commitment
binding upon the title insurer or escrow instructions binding on the title
insurer and irrevocably obligating the title insurer to issue such title
insurance policy), (c) exceptions and exclusions specifically referred to in
such Title Insurance Policy (or if not yet issued, referred to in a pro forma
title policy, a "marked-up" commitment binding upon the title insurer or escrow
instructions binding on the title insurer and irrevocably obligating the
2-1
title insurer to issue such title insurance policy), (d) other matters to which
like properties are commonly subject, (e) rights of tenants (as tenants only)
under leases (including subleases) pertaining to the related Mortgaged Property,
(f) if such Mortgage Loan is cross-collateralized with any other Mortgage Loan,
the lien of the Mortgage for such other Mortgage Loan and (g) if the related
Mortgaged Property consists of one or more units in a condominium, the related
condominium declaration, none of which matters referred to in clauses (b)
through (g), individually or in the aggregate, materially and adversely
interferes with the security intended to be provided by such Mortgage, the
marketability or current use of the Mortgaged Property or the current ability of
the Mortgaged Property to generate operating income sufficient to service the
Mortgage Loan debt (the foregoing items (a) through (g) being herein referred to
as the "Permitted Encumbrances"). The related assignment of such Mortgage
executed and delivered in favor of Trustee is in recordable form (but for
insertion of the names and addresses of the assignee and any related recording
information which is not yet available to Seller) 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 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 and 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 (either as
a separate instrument or as part of the Mortgage) 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 except that a license may have been granted to the related Mortgagor by the
related lender to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property so long as no event of default has
occurred under such Mortgage Loan, 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 Trustee and
is in recordable form (but for insertion of the name and address of the assignee
and any related recording information which is not yet available to Seller) and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named
2-2
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 (beyond applicable notice and grace
periods) under the Mortgage Loan, the appointment of a receiver for the
collection of rents or for the related mortgagee to enter into possession of the
related Mortgaged Property 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 February 1, 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 within eighteen (18) months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's
knowledge, free and clear of any damage (or a letter of credit 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 within
eighteen (18) months prior to the Cut-Off 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 a letter of
credit 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. As of the Closing Date, 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 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, (x)
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, (y) 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, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
2-3
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment or escrow
instructions binding on the title insurer irrevocably obligating the title
insurer to issue such title insurance policy (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, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, the security
interest in each of which parcel is granted by a Mortgage and such Mortgage (and
therefore the related Title Policy) may be in an amount less than the original
principal amount of the Mortgage Loan, but such Mortgages, in the aggregate, are
not less than the total original principal amount of the Mortgage Loan, and
provided that such amount is at least equal to the allocated Mortgage Loan
amount, as evidenced by the Mortgage Loan documents. 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 Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of Trustee without the consent of, or notice to, the insurer. To
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.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed (for the avoidance of doubt, amounts held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property will be
considered fully disbursed and will not be considered an exception to this
representation) 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 and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note, Mortgage or other Mortgage
Loan documents 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 or has been substituted in accordance
with the Mortgage and applicable law, and (2) no fees or expenses are payable to
such trustee by Seller, Purchaser or any transferee thereof except in connection
with a trustee's sale after default by the related Mortgagor or in
2-4
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an "Environmental
Report") has been delivered to Purchaser, and Seller has no knowledge
of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. The Mortgage Loan documents for each Mortgage
Loan require the related Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations. Where
such Environmental Report 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, (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated,
(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, (iv) the related mortgagor, or other responsible party, provided
a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable federal, state or local government authorities had no
current intention of taking any action, and are not requiring any
action, in respect of such conditions or circumstances, (v) such
conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant
recommended no further investigation or remediation, (vi) the
expenditure of funds reasonably estimated to be necessary to effect
such remediate is not greater than 2% of the outstanding principal
balance of the related Mortgage Loan, and the Mortgagor or other
responsible party has agreed to undertake the remediation, (vii) there
exists an escrow of funds reasonably estimated to be sufficient for
purposes of effecting such remediation and not less than 125% of the
estimated cost thereof, (viii) a responsible party provided a guaranty
or indemnity to the related Mortgagor to cover the costs of any
required investigation, testing, monitoring or remediation, (ix) the
related Mortgagor or one of its affiliates is currently taking or
required to take such actions (that may be the implementation of an
operations and maintenance plan) with respect to such conditions or
circumstances or have been recommended by the environmental site
assessment or required by the applicable governmental authority and
the Mortgagor or other responsible party has agreed to be responsible
for such required actions, the remaining cost of which does not exceed
2% of the outstanding principal balance of the Mortgage Loan or (x)
the
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circumstance or condition has been fully remediated based on a report
from a qualified environmental consultant. 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) standards.
Each Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C (the
"Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on Schedule A
to this Exhibit 2, with respect to each Schedule C Loan, (i) to
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) A PROPERTY CONDITION OR ENGINEERING REPORT
WAS PREPARED WITH RESPECT TO LEAD BASED PAINT ("LBP") AND RADON GAS
("RG") AT EACH MORTGAGED PROPERTY THAT IS USED AS A MULTIFAMILY
DWELLING, AND WITH RESPECT TO ASBESTOS CONTAINING MATERIALS ("ACM") AT
EACH RELATED MORTGAGED PROPERTY AND (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG environmental
condition or circumstance affecting the related Mortgaged Property,
the related Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide additional
security, or establish with the lender a reserve from loan proceeds,
in an amount deemed to be sufficient by Seller for the remediation of
the problem and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of the
Mortgage Loan, (iii) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or circumstance affecting
the Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through
the maturity of the policy's term and the term of such policy extends
at least five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM Standards issued sometime within 18 months prior to the
Cut-Off 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 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
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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 Seller nor, to 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 or material 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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. Sections
1251 et seq.), the Clean Air Act as amended (42 U.S.C. Sections 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 or any guarantor of any
non-recourse exceptions and environmental liability 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 (a)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and (b) by general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law but (subject to
the limitations set forth in the foregoing clauses (a) and (b)) such limitations
or unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. 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 that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premium
or yield maintenance charges.
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
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the
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lesser of the outstanding principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to twelve (12) months
of operations of the Mortgaged Property estimated as of the date of origination
by the originator of such Mortgage Loan consistent with its capital markets
conduit lending practices; (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. Each
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, reduction of coverage or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage, except as set
forth in the first sentence of this paragraph 14, 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 (or at
the lender's option 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 average return period 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 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 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:
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(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 Seller and related lessor) does
not prohibit the current use of the 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
Purchaser and Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required for assignment to Purchaser, it has been obtained prior to
the Closing Date) and is further assignable by 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 either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, Seller
has received no notice that an event of default has occurred
thereunder, and, to 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 (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 (20)
years beyond the Maturity Date of the related Mortgage Loan;
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(viii) Under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, 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 appointed or consented to 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; and
(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
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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.
21. Advancement of Funds by 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 (other
than (a) amounts paid by a tenant as specifically provided under a related lease
or by the property manager or (b) application and commitment fees, escrow funds,
points and reimbursements for fees and expenses incurred in connection with the
origination and funding of the 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 that were bonded
or escrowed for or 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 that were bonded or escrowed for or insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or
is exempt from) all applicable usury laws and any other applicable material 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 or objectively determinable 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. Section 1.1001-3 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 reasonable cost of such opinion.
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26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
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. Neither Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. To 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 giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan (other than payments due but not yet thirty (30) days or more
delinquent), 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 Seller elsewhere in this Exhibit 2 or the
exceptions listed in Schedule A attached hereto.
28. Inspections. Seller (or if 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 upon a letter from governmental
authorities, a legal opinion, a zoning consultant's report or an endorsement to
the related Title Policy, or based on such other 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 are in material compliance 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 Seller hereunder or any such material
non-compliance with such applicable zoning laws is insured by the Title Policy
or a law and ordinance insurance policy.
30. Junior Liens. Except with respect to the lien securing another
Mortgage Loan cross-collateralized and cross-defaulted with the Mortgage Loan,
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. Except with respect to the above, 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 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
2-12
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. The servicing and collection practices used by Seller
or 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 Seller's knowledge, based on (a) a letter
from governmental authorities, (b) a legal opinion, (c) an endorsement to the
related Title Policy, (d) a zoning report from a zoning consultant or (e) other
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 Seller hereunder, the related
Mortgagor, the related lessee, franchisee or operator 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 or such material licenses, permits and franchises have otherwise been
issued and are in effect.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED
LIVING FACILITY].
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
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 other than by reason of
family and estate planning transfers, transfers by devise or descent or by
operation of law upon death, transfers of less than a controlling interest in
Mortgagor, transfers of shares in public companies, issuance of non-controlling
new equity interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan documents, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors with
respect to cross collateralized Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Mortgagors, transfers of worn out or obsolete furniture,
furnishings or equipment or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan documents; 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
2-13
effect that it was formed or organized or as of the Mortgage Loan's closing date
was amended to be 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, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
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 the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is at least two (2) years after the Closing Date, (ii) 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
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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
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. 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 Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not 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 in certain cases 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 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 Mortgagor in any intentional fraud in connection
with the origination of the Mortgage Loan. To Seller's knowledge, no Mortgagor
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. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to
2-15
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. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-16
SCHEDULE A TO EXHIBIT 2
Exceptions to Representations and Warranties
REP. 2. Whole Loan; Ownership of Mortgage Loans,
REP. 5. Assignment of Leases and Rents,
REP. 24. Cross-collateralization, and
REP. 30. Junior Lien.
Each of the following Mortgage Loans is secured by a Mortgage that
also secures a junior "B" loan other than one or more other Mortgage Loans. The
related loans are described in the Prospectus Supplement.
No. ___, Deptford Mall;
No. ___, Easton Apts.;
No. ___, Yearling Green Apts; and
No. ___, One Seaport Plaza.
Each of the following Mortgage Loans is secured by a Mortgage that
also secures a pari passu loan other than one or more other Mortgage Loans. The
related loans are described in the Prospectus Supplement.
No. ___, RREEF Portfolio;
No. ___, 000 Xxxxxxxxx Xxxxxx; and
No. ___, Deptford Mall, with respect to a pari passu note that may
possibly be created in the future. This loan is in addition to the B note
described above.
In the case of Mortgage Loan No. ___, 000 Xxxxxxxxx Xxxxxx, the
Mortgage Loan will be serviced pursuant to a pooling and servicing agreement
other than the HQ11 Pooling and Servicing Agreement, and ownership of the loan
documents are nominally held pursuant to that pooling and servicing agreement.
REP. 4. First lien.
With respect to Mortgage Loan Xx. 0, Xxx Xxxxxxx Xxxxx, xxx Xxx Xxxx
Xxxx Industrial Development Agency (the "XXX") and Xxxxxxx Seaport, LLC, the
borrower, are collectively the mortgagor under the Mortgage, whereby the lender
agreed that in the any action to foreclose or otherwise enforce the Security
Instrument, the IDA's right, title and interest with respect to the mortgaged
property shall not be terminated, disturbed or otherwise affected by reason of
such action or proceeding.
REP. 7. Property Condition.
With respect to Mortgage Loan No. __, The Greens at Green Valley, the
engineering report recommends $324,400 of immediate or deferred maintenance
repairs. The loan agreement does not require an up-front reserve for any
repairs.
REP 9. No Holdbacks.
With respect to Mortgage Loan Nos. ___ to ___, RREEF Portfolio,
advances of $378,000,000 (of which $138,500,000 is included in the HQ11 trust)
were made prior to the date hereof, with an additional amount up to $22,000,000
- the Xxxxxxx Station Future Advance - to be disbursed provided the conditions
precedent set forth in Section 11.29 of the loan agreement are satisfied on or
before May 1, 2007. The future funding obligation will not be an obligation of
the trust, but will be an obligation of the pari passu note holder, instead.
With respect to Mortgage Loan No. __, Deptford Mall, $100,000,000 was
advanced on the closing date, with a remaining amount not to exceed $72,500,000
(consisting of $60,000,000 of pari passu debt and $12,000,000 of B note debt) to
be disbursed as a one-time future advance in accordance with Article III of the
loan agreement. The future funding obligation will not be an obligation of the
trust, but will be an obligation of the B note and pari passu note holders,
instead.
REP. 14. Insurance.
With respect to each of the following Mortgage Loans, the loan
documents do not require the insurer to give prior notice of the reduction of
the amount of coverage of the insurance policies:
No. __, Casa Xxxxx Plaza;
No. __-__, Platinum Portfolio; and
No. __, East Bay Retail.
With respect to Mortgage Loan No. __, Pittsburgh Xxxxx, the loan
documents do not require that the "All Risk" insurance policy obtained by the
Mortgagor contain no provision for a deduction for depreciation.
Certain of the Mortgage Loans do not require the insurance to name the
lender as an additional insured, although the insurance policies must provide
that all proceeds shall be payable to the lender as set forth in the respective
loan agreement.
With respect to certain of the Mortgage Loans, if the net proceeds
from insurance do not exceed a certain net proceeds availability threshold
amount, then the net proceeds will be disbursed directly to the borrower,
provided certain conditions are met, without an express requirement to apply the
net proceeds to restoration of the Mortgaged Property. Nevertheless, the loan
documents contain an independent covenant on the part of the borrower to repair
and restore the Mortgaged Property.
Mortgage Loan No. [1], One Seaport Plaza, does not require business
interruption insurance covering at least 12 months of operations of the
Mortgaged Property, but instead requires business interruption insurance
providing coverage until the earlier of the date upon which the income from the
Mortgaged Property returns to the same level as it was prior to the loss, or the
date three months after the date that the Mortgage Property is repaired or
replaced and operations are resumed.
REP. 17. Leasehold Estate.
With respect to Mortgage Loan No. __, Westin Palo Alto, the ground lease does
not contain certain of the lender protection provisions set forth in this
representation; however, the fee owner is joined as a co-grantor under the deed
of trust.
Mortgage Loan No. ___, Hampton Inn, Fultondale is leased pursuant to a ground
lease that expires in 2018. The borrower has the option to purchase the fee for
a price of $20,000 plus expenses, at lease maturity. The lender has escrowed
$21,000 and has been granted the right to exercise the purchase option on behalf
of the borrower.
With respect to Mortgage Loan No. ___, DePaul Medical Office, the ground lease
cannot be assigned without the consent of the fee owner, except with respect to
an assignment to the securitization trustee. The ground lease also imposes
certain use restrictions on the Mortgaged Property.
REP. 19 LTV Ratio.
With respect the Mortgage Loan Nos. ____ through ____, Pennsylvania
Retail Portfolio, but more specifically Mortgage Loan No. ___, Weis Xxxx Lake,
the gross proceeds of the promissory note in the amount of $6,490,000 were paid
to the "Borrower" and not to both "Fee Owner" (mortgagor) and "Borrower".
REP. 25. Release of Mortgaged Property.
With regard to Mortgage Loan Nos. ___ to ___, RREEF Portfolio, the
borrower may obtain the release of individual properties through a partial
defeasance in connection with third party sales by posting defeasance collateral
in the amount of 110% of the allocated loan amount with respect to the
particular property, subject to the satisfaction of certain conditions,
including (i) no event of default has occurred or remains uncured, (ii) the
borrower obtains a rating agency confirmation of no qualification or downgrade
of the REMIC securities as a result of such partial defeasance, and (iii) the
debt service coverage ratio immediately following such release is at least equal
to the greater of 1.09:1.00 or the debt service coverage ratio immediately prior
to such release.
Mortgage Loan No. ___, Pittsburgh Xxxxx, permits the release without
prepayment of parcels to facilitate the addition or expansion of improvements on
the Mortgaged Property, provided certain conditions are met, including: (i) the
debt service coverage ratio taking into account the improvement to the release
parcel will not be less than the debt service coverage ratio for the loan
immediately preceding the release, and (ii) delivery of a rating agency
confirmation that no withdrawal or downgrade of the ratings of the REMIC
securities on account of the partial release. The Mortgage Loan permits the
release without prepayment of a specific release parcel pursuant to a sale for
use by an anchor tenant without satisfying the above conditions. The Mortgage
Loan also permits the release without prepayment of all or any portion of
roadways now serving the Mortgaged Property, in the event that the borrower
dedicates them to the township.
Mortgage Loan Nos. ___ through ___, Xxxx/PER Portfolio, each permit
the borrower to partially release the respective individual loan, provided
certain conditions are met, including: (i) delivery of defeasance collateral in
the amount of 110% of the allocated loan amount with respect to the released
parcel, (ii) the debt service coverage ratio with respect to the remaining
property shall be greater than the greater of (a) the debt service coverage
ratio at closing and (b) the debt service coverage ratio immediately prior to
the release, (iii) the loan-to-value ratio with respect to the remaining
property shall not exceed the lesser of (a) the loan-to-value ratio at closing
and (b) the loan-to-value ratio immediately prior to the release, and (iv)
delivery of a rating agency confirmation as to the partial defeasance event.
With respect to Mortgage Loan No. ___, Deptford Mall, the borrower may
obtain a release of unimproved, non-income producing portions of the property,
without any required prepayment of the loan, provided that the borrower
satisfies certain conditions, including that (i) the fair market value of all
parcels so released not exceed $5,000,000 in the aggregate, (ii) for any such
release after the first such release the borrower first obtain a REMIC opinion,
and (iii) for any such release in which the value of the parcel to be released
exceeds $1,000,000, the borrower first obtain a rating agency confirmation that
the applicable securities will not be subject to a qualification, downgrade, or
withdrawal of rating on account of the release.
With respect to Mortgage Loan No. ___, Pennsylvania Retail Portfolio,
after 2/28/09, if no event of default is continuing, the borrower may obtain the
release of any individual property or properties if (i) for all remaining
properties as well as for each additional remaining property, the loan-to-value
ratio is greater than or equal to 80%; (ii) the debt service coverage ratio is
at least the greater of (1.15 or the debt service coverage ratio at a previous
defeasance); and (iii) the debt service coverage ratio for all remaining
properties must be 1.15 or greater (on an aggregate basis).
With respect to Mortgage Loan No. ___, PA-MD Portfolio, after 2/28/09, if no
event of default is continuing, the borrower may obtain the release of any
individual property or properties if remaining properties have at least greater
of 1.15x debt service coverage ratio or actual debt service coverage ratio of
previous defeasance; and a loan-to-value ratio of no greater than 80% following
release.
With respect to Mortgage Loan No. ___, Orlando Retail Portfolio, properties may
be released subject to 115% prepayment of the allocated amount with respect to
the relevant property.
With respect to Mortgage Loan No. ___, East Bay Retail, the borrower may obtain
a release of a parcel at 120 % of the allocated loan amount for that parcel
($3,760,000), provided the debt service coverage ratio is no less than 1.20x or
the debt service coverage ratio prior to release; and the loan-to-value ratio is
no greater than 80% or the loan-to-value ratio prior to release.
REP. 29. Local Law Compliance.
With respect to Mortgage Loan No. ___, Petsmart- East Hanover, the construction
is not complete and no certificate of occupancy is yet in place. The tenant is
currently paying rent under its triple net lease.
With respect to Mortgage Loan No. ___, Sunrise Apartments, the Mortgaged
Property is non-conforming with respect to parking. The municipality is expected
to grant a variance and the Mortgage Loan is recourse to the sponsor for any
related lender losses.
REP 36. Due on Sale (encumbrance).
Each of the following Mortgage Loans has current mezzanine financing
in place:
No. ___, Pittsburgh Xxxxx; and
No. ___, Commerce Sq.
Each of the following Mortgage Loans permits the parent of the
borrower to obtain future mezzanine financing, provided certain conditions are
met:
No. ___, Marriott Charlotte City Center;
No. ___, Hilton Arlington and Towers
No. ___, Casa Xxxxx Plaza;
No. ___, Westin Palo Alto;
No. ___, Hilton Garden Inn - The Woodlands
No. ___, Westpark Towne Plaza
No. ___, Country Inn & Suites - Atlanta Airport
No. ___, Mission Creek Apartments
No. ___, Hampton Inn - Brookhollow
No. ___, Ramada Inn - Phoenix
No. ___, Xxxxxx Business Center
No. ___, Olympia Center
No. ___, Suburban Extended Stay - Louisville
No. ___, Melbourne Xxxxxxx Retail
With regard to Mortgage Loan No. ___, Hilton Arlington, a permitted mezzanine
borrower may incur a mezzanine loan, provided among other things, that no event
of default has occurred and is continuing, the mezzanine lender enters into an
intercreditor agreement reasonably acceptable to the lender and the rating
agencies, the loan-to-value ratio immediately following the closing of the
permitted mezzanine debt is not greater than 70%, and the debt service coverage
ratio immediately following the closing of the permitted mezzanine debt is not
less than 1.45 to 1.0.
With respect to Mortgage Loan No. __, 000 0xx Xxxxxx, the equity member(s) of
borrower (other than any general partner or managing member) may incur a
mezzanine loan, provided among other things, that: (i) the loan-to-value ratio
based on the aggregate principal amount of the Mortgage Loan and the mezzanine
debt is no greater than 85%; (ii) the ratio of (A) underwritable cash flow for
the 12 calendar month period immediately preceding the date of calculations to
(B) the projected debt service that would be due under the Mortgage Loan and
mezzanine debt for the 12 calendar month period immediately following such
calculation, shall be greater than or equal to 1.1 to 1.0; and (iii) the lender
has approved the mezzanine lender, mezzanine loan documents, an intercreditor
agreement between the lender and mezzanine lender, and any opinions and
appraisals.
With respect to Mortgage Loan No. ___, Men's Warehouse/Verizon, Cousin's
Properties, Inc. has the right to reacquire the Mortgaged Property (at 90% of
fair market value, under certain circumstances) in the event that Men's
Warehouse operations cease for six months.
REP. 37. Single Purpose Entity.
With respect Mortgage Loan Nos. ____ through ____, the Pennsylvania
Retail Portfolio, but more specifically Mortgage Loan No. ___, Weis Xxxx Lake,
the Promissory Note in the amount of $6,490,000 was executed only by "Borrower"
and not by both "Fee Owner" and "Borrower" as was the Mortgage.
REP. 38. Non-Recourse Exceptions.
Each of the following Mortgage Loans is not recourse to a natural
person, nor is any natural person liable to the holder of the Mortgage Loan for
damages arising in the case of fraud or willful misrepresentation by the
borrower, misappropriation of rents, insurance proceeds or condemnation awards,
or breaches of the environmental covenants in the Mortgage Loan documents:
No. ___, One Seaport Plaza;
Nos. ___ to ___, RREEF Portfolio;
No. ___, 000 Xxxxxxxxx Xxxxxx;
No. ___, 000 X'Xxxxxx Xxxxx;
No. ___, Deptford Mall;
No. ___, Marriott Charlotte City Center;
No. ___, Hilton Arlington & Towers;
No. ___, The Greens at Green Valley;
No. ___, Casa Xxxxx Plaza;
Nos. ___ to ___, Xxxx/PER Portfolio;
No. ___, PetSmart - East Hanover;
No. ___, Pine Oak Plaza;
No. ___, Hampton Inn - Fultondale;
No. ___, Mission Creek Apartments; and
No. ___, 0000 Xxxxx Xxxxxx Self Storage
With respect to Mortgage Loan No. __, 000 0xx Xxxxxx, the liability of
each guarantor is several on a fifty-fifty basis and shall be limited with
respect to each guarantor to the sum of (i) $20,000,000 plus (ii) the amounts
due pursuant to such guarantor's breach or failure to timely perform under the
guaranty which shall conclusively be deemed to equal 50% of the amounts due
under the guaranty with respect to any costs and expenses incurred by the lender
in connection with any proceeding during any period of time in which both
guarantors are parties.
With respect to Mortgage Loan No. __, 000 0xx Xxxxxx, and Mortgage
Loan No. __, Westin Palo Alto, a natural person is liable to the holder of the
Mortgage Loan for misappropriation of any rents only following a loan default.
Mortgage Loan No. ___, Sunset Plaza, is not recourse to a natural
person, nor is any natural person liable to the holder of the Mortgage Loan for
damages arising in the case of fraud or willful misrepresentation by the
borrower, misappropriation of rents, insurance proceeds or condemnation awards,
or breaches of the environmental covenants in the Mortgage Loan documents as
long as the net worth of Bond Purchase, LLC is $2,000,000 or greater.
With respect to the following Mortgage Loans no natural person is
liable for breaches of the environmental covenants in the loan documents.
No. ___, Pine Oak Plaza;
No. ___, Crossing Place Apartments;
No. ___, Regal Cinema - Lincolnshire;
No. ___, Crossing Place Apartments;
No. ___, Easton Apartments;
No. ___, Carriage Club at Mt. Arlington.
REP. 43. Terrorism Insurance.
With respect to Mortgage Loan No. __, RREEF Portfolio, the borrower is
required to maintain terrorism insurance only to the extent obtainable for a
maximum annual premium equal to $300,000.
With respect to Mortgage Loan No. __, 000 0xx Xxxxxx, the borrower is
required to maintain terrorism insurance only to the extent obtainable for a
maximum annual premium equal to $250,000, inflation adjusted.
With respect to Mortgage Loan No. __, Pittsburgh Xxxxx, the borrower
is required to maintain terrorism insurance only to the extent obtainable for a
maximum annual premium equal to the sum of $200,000, inflation adjusted.
With respect to Mortgage Loan No. ___, Marriott Charlotte City Center,
and Mortgage Loan No. ___, Hilton Arlington & Towers, the borrower is not
required to pay terrorism coverage annual premiums in excess of $100,000.
With respect to Mortgage Loan No. ___, 000 Xxxxxxxxx Xxxxxx, if
insurance in accordance with the Terrorism Risk Insurance Act, or its
replacement, is not commercially reasonably available, the borrower is not
obligated to spend more than 150% of the annual premium paid by the borrower for
its "all-risk" or "special form" insurance required in the loan documents for
the immediately prior year, excluding the cost of any coverage for acts of
terrorism previously provided by insurers.
Schedule C to Exhibit 2: Environmental Insurance
The following Mortgage Loans have environmental insurance policies in
place:
Mortgage Loan No. ___, Casa Xxxxx Plaza; and
Mortgage Loan No. ___, Crossing Place Apartments.
SCHEDULE B TO EXHIBIT 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE
------------------------------------------------------------------------------------------------
30 MSMC Pennsylvania Retail Portfolio - Weis Xxxx Lake $ 6,482,635
00 XXXX Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx - Xxxxxxx Xxxx $ 3,096,482
32 MSMC Pennsylvania Retail Portfolio - CVS Hockersville $ 2,856,755
33 MSMC Pennsylvania Retail Portfolio - CVS Edgewood $ 1,962,770
34 MSMC Pennsylvania Retail Portfolio - CVS Richland $ 1,957,776
36 MSMC PA-MD Retail Portfolio - Staples Susquehanna $ 3,915,552
37 MSMC PA-MD Retail Portfolio - CVS Johnnycake $ 3,875,597
38 MSMC PA-MD Retail Portfolio - CVS Xxxxxx $ 2,547,106
39 MSMC PA-MD Retail Portfolio - CVS Hollins Ferry $ 2,237,458
40 MSMC PA-MD Retail Portfolio - CVS Mt. Joy $ 2,192,509
41 MSMC PA-MD Retail Portfolio - Hazleton Plaza $ 1,038,820
000 XXXX Xxxxxxx Retail Portfolio - Alafaya Trail Shopping Center $ 3,594,095
000 XXXX Xxxxxxx Retail Portfolio - Sand Lake Shoppes $ 1,697,212
MORTGAGE
LOAN NO. BORROWER NAME SPONSOR
------------------------------------------------------------------------------------------------------
18 Jade Pig Ventures-Rockford, L.L.C. Xxxxx X. XxXxxxx
19 Jade Pig Ventures-Breton Xxxxxxx, L.L.C. Xxxxx X. XxXxxxx
20 Jade Pig Ventures-Xxxxxxxx, L.L.C. Xxxxx X. XxXxxxx
21 Jade Pig Ventures-Parkview, L.L.C. Xxxxx X. XxXxxxx
30 W.B.H.V. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
31 S.L.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
32 C.H.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
33 C.E.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
34 C.C.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
36 S.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
37 Johnnycake Associates III, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
38 C.C.M. Associates II, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
39 C.L. Associates II, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
40 C.M.J. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
41 J.R.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
108 K&B Alafaya Associates LLC Xxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx
109 Sand Lake Shoppes Family Limited Partnership Xxxxxx Xxxxxxx; Xxxxxx Xxxxxxx; Xxxx Xxxxxxx
SCHEDULE C TO EXHIBIT 2
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $2,445,725,328
Less Expenses $ 4,200,620
--------------
Net Proceeds $2,449,925,948
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,846,030,231
Allocable Expense Amount for MS Loans $ 3,179,813
--------------
Purchase Price of MS Loans $1,849,210,045
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $ 402,997,949
Allocable Expense Amount for LaSalle Loans $ 685,122
--------------
Purchase Price of LaSalle Loans $ 403,683,071
Less Purchase Price of PCF II Loans
Discounted Value of PCF II Loans $ 196,697,148
Allocable Expense Amount for PCF II Loans $ 335,684
--------------
Purchase Price of PCF II Loans $ 197,032,832
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
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 February 15, 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 and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
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 February, 2007.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
--------------------------------
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
--------------------------------
Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of February 15, 2007 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), MSMC is selling certain multifamily and commercial mortgage loans
(the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated
as of February 1, 2007 (the "Pooling and Servicing Agreement"), between the
Depositor, Capmark Finance Inc., as Master Servicer, X.X. Xxxxxx Company, Inc.
("JER") as Special Servicer, LaSalle Bank National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent and Xxxxx Fargo Bank, National
Association ("WFB") as Trustee and Custodian, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, MSMC has agreed to provide this Limited Power of Attorney pursuant
to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMC does hereby make, constitute and appoint WFB, acting
solely in its capacity as Trustee under, and in accordance with the terms of,
the Pooling and Servicing Agreement, MSMC's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in MSMC's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in
4-1
Section 1.1 of the Pooling and Servicing Agreement, that have been received by
the Trustee or a Custodian on its behalf, and all Form UCC-2 or UCC-3
assignments of financing statements and all other comparable instruments or
documents with respect to the Mortgage Loans which are customarily and
reasonably necessary or appropriate to assign agreements, documents and
instruments pertaining to the Mortgage Loans, in each case in favor of the
Trustee as set forth in the definition of "Mortgage File" in, and in accordance
with Section 1.1 of, the Pooling and Servicing Agreement, and to evidence,
provide notice of and perfect such assignments and conveyances in favor of the
Trustee in the public records of the appropriate filing and recording offices;
and (ii) to file or record in the appropriate public filing or recording
offices, all other Mortgage Loan documents to be recorded under the terms of the
Pooling and Servicing Agreement or any such Mortgage Loan documents which have
not been submitted for filing or recordation by MSMC on or before the date
hereof or which have been so submitted but are subsequently lost or returned
unrecorded or unfiled as a result of actual or purported defects therein, in
order to evidence, provide notice of and perfect such documents in the public
records of the appropriate filing and recording offices. Notwithstanding the
foregoing, this Limited Power of Attorney shall grant to WFB and JER only such
powers, responsibilities and authority as are set forth in Section 2.1 of the
Mortgage Loan Purchase Agreement.
MSMC does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
MSMC's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in MSMC's name, place and stead solely to exercise and perform all of the
rights, authority and powers of WFB as set forth in the preceding paragraph in
the event of the failure or the incapacity of WFB to do so for any reason. As
between JER and any third party, no evidence of the failure or incapacity of WFB
shall be required and such third party may rely upon JER's written statement
that it is acting pursuant to the terms of this Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMC's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMC might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMC agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMC, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMC's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMC and MSMC's successors and assigns.
This Limited Power of Attorney shall continue in full force and effect with
respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling and
Servicing Agreement;
with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under the
terms of the Pooling and Servicing Agreement;
with respect to the Trustee, the appointment of a receiver or conservator
with respect to the business of the Trustee, or the filing of a voluntary
or involuntary petition in bankruptcy by or against the Trustee;
with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or the
filing of a voluntary or involuntary petition in bankruptcy by or against
the Special Servicer;
with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund;
with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance with its
terms; and
with respect to the Special Servicer, the occurrence of an Event of Default
under the Pooling and Servicing Agreement with respect to the Special
Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties
or obligations of MSMC under the Mortgage Loan Purchase Agreement, and nothing
herein shall constitute a waiver of any rights or remedies under the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY 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.
[Signature on next page]
IN WITNESS WHEREOF, MSMC has caused this instrument to be executed and its
corporate seal to be affixed hereto by its officer duly authorized as of
February 28, 2007.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 28th day of February, 2007, before me appeared __________________,
to me personally known, who, being by me duly sworn did say that he/she is the
_____________________ of Xxxxxx Xxxxxxx Mortgage Capital Inc., and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said __________________ acknowledged
said instrument to be the free act and deed of said corporation.
---------------------------------------
Name:
--------------------------------
Notary Public in and for said County and State
My Commission Expires:
----------------------
EXECUTION VERSION
EXHIBIT K-3
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT III (PCFII)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
PRINCIPAL COMMERCIAL FUNDING II, LLC
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of February 15, 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................ 12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER........................................................ 16
6. CLOSING............................................................... 21
7. CLOSING DOCUMENTS..................................................... 22
8. COSTS................................................................. 24
9. NOTICES............................................................... 24
10. SEVERABILITY OF PROVISIONS............................................ 24
11. FURTHER ASSURANCES.................................................... 24
12. SURVIVAL.............................................................. 25
13. GOVERNING LAW......................................................... 25
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT.......................... 25
15. MISCELLANEOUS......................................................... 25
16. ENTIRE AGREEMENT...................................................... 25
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 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
Defective Mortgage Loan.................................................... 17
Final Judicial Determination............................................... 19
Indemnification Agreement.................................................. 14
Initial Purchaser.......................................................... 2
Master Servicer............................................................ 2
i
Material Breach............................................................ 16
Material Document Defect................................................... 16
Memorandum................................................................. 3
MERS....................................................................... 5
Mortgage File.............................................................. 4
Mortgage Loan Schedule..................................................... 3
Mortgage Loans............................................................. 2
Officer's Certificate...................................................... 8
Other Mortgage Loans....................................................... 2
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
(PCFII LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
February 15, 2007, between Principal Commercial Funding II, LLC (the "Seller"),
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 February 1, 2007, between Purchaser, as
depositor, Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company, Inc.,
as special servicer ("Special Servicer"), Xxxxx Fargo Bank, National
Association, as trustee and custodian ("Trustee") and LaSalle Bank National
Association, as paying agent, certificate registrar and authenticating agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 (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 Capmark Finance Inc. 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-3-1, Class A-3-2, Class
A-AB, Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class
C, Class D, Class E and Class F Certificates (the "Public Certificates") will be
sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, LaSalle Financial
Services, Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (other than with respect to the Class A-4 Certificates)
(the "Underwriters"), pursuant to an Underwriting Agreement, between Purchaser
and the Underwriters, dated February 15, 2007 (the "Underwriting Agreement"),
and the Class X, 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
2
February 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters will
offer the Public Certificates for sale publicly pursuant to a Prospectus dated
February 6, 2007, as supplemented by a Prospectus Supplement dated February 15,
2007 (together with the Prospectus, 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 February 15, 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 February 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 $193,201,511. The sale of the
Mortgage Loans shall take place on February 28, 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 on Exhibit 3 hereto. 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 February 1, 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 5 in favor of Trustee, Master
3
Servicer and Special Servicer to empower Trustee, Master Servicer and, in the
event of the 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 Xxxxx Fargo
Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11, 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
4
Certificate (as defined below) of Seller stating that such original Mortgage has
been sent to the appropriate public recording official for recordation or (ii)
in the case of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such Mortgage is
recorded that such copy is a true and complete copy of the original recorded
Mortgage;
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 "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," 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 "Xxxxx Fargo Bank, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11," 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.
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.
7
"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, assignment of
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 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
8
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 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 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
Mortgagor/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
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
9
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
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, Sections 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.
10
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 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 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 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, each 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
11
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 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.
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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, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
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 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
13
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 PCF II Mortgage Loan Information (as defined in
that certain indemnification agreement, dated February 15, 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
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.
For so long as the Trust is subject to the reporting requirements of the
Exchange Act, Seller shall provide Purchaser (or with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, the
depositor in such Other Securitization) and the Paying Agent with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure set forth next to
Seller's name on Schedule XV and Schedule XVI of the Pooling and Servicing
Agreement within the time periods set forth in the Pooling and Servicing
Agreement.
14
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 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
15
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 Purchasers 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.
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
16
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 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
17
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.
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,
18
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 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, to the extent set forth in 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, then 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
19
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 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 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.
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.
20
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:
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 PCFII 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 none of
the Initial Purchasers shall have terminated the Certificate Purchase Agreement,
and neither the Underwriters nor the Initial Purchasers 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.
21
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) 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.
A certificate of existence for Seller from the Secretary of State of Delaware
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 Delaware 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,
22
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.
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,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
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.
23
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 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 4.
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 Principal Commercial Funding II, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx
00000, Attention: Xxxxxx X. Xxxxxx (with a copy to the attention of Xxxxxx X.
Xxxxxxxxx, or to such other address as may hereafter be furnished in writing by
such entity).
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.
24
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
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
25
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 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.
26
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.
PRINCIPAL COMMERCIAL FUNDING II, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Director of Finance
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE MATURITY DATE
---------------------------------------------------------------------------------------------------------------------------
10 PCF II Residence Inn Tudor Wharf 00-00 Xxxxxxx Xxxxx Xxxxxx Xxxxxx XX 01/01/2014
24 PCF II Southlake Corners 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 01/01/2012
49 PCF II 000 Xxxxx Xxxx 000 Xxxxx Xxxx Xxxxx Xxxxxxxxx XX 01/01/2017
00 XXX XX Xxxx Xxxxx Xxxxxxx 24 Sandalwood Drive Xxxxx Xxxx Creek DE 01/01/2017
Apartments Hundred
58 PCF II Prairie Packaging Facility 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxx XX 02/01/2017
64 PCF II Euram Building 00 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 01/01/2017
71 PCF II 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 01/01/2017
73 PCF II Cedar Tree Apartments 0000 Xxxxx Xxxx Xxxxx Brandywine Hundred DE 01/01/2017
85 PCF II Allstate Office Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 02/01/2017
87 PCF II Lakeshore Village 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
Apartments
91 PCF II 0000 Xxxxx Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxx Xx. Lauderdale FL 01/01/2017
102 PCF II 0000 Xxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx Xxxxxx XX 01/01/2017
000 XXX XX Xxxxxxxx Xxxxxx 000-000 & 000-000 Xxxxxxx Xxx Xxxxxxxx XX 01/01/2017
113 PCF II Supply One Warehouse 00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx XX 01/01/2017
127 PCF II Green Country Distribution 0000 Xxxx 00xx Xxxxxx Xxxxx XX 12/01/2016
141 PCF II 10620 & 10710 Southern 10620 & 00000 Xxxxxxxx Xxxx Xxxxxxxxx XX 06/04/2017
Xxxx Xxxxxxxxx Xxxxxxxxx
000 XXX XX Xxxxx Xxxxxx Shopping 0000-0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 01/01/2017
Center
154 PCF II 0000 Xxxx Xxxx 0000 Xxxx Xxxx Xxxxxxxxxx Xxxxxxxx XX 12/01/2016
157 PCF II West Lodi Self Storage 0000 Xxxx Xxxx Xxxxxx Xxxx XX 01/01/2017
159 PCF II 4110-4120 Xxxxxxxxx Retail 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxx XX 01/01/2017
Center
160 PCF II 000 Xxxxxxxxx Xxxx 000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 01/01/2017
161 PCF II 00000 Xxxxxx Xxxxx 00000 Xxxxxx Xxxxx Novi MI 01/01/2017
164 PCF II 0000 Xxxxxxxxxxxxx Xxxxxxx 0000 Xxxxxxxxxxxxx Xxxxxxx Xxxxxxxxx XX 01/01/2017
165 PCF II Morgan Manor 1325-1427 Xxxxxxxxx Street Bucyrus OH 01/01/2017
166 PCF II 0000 0xx Xxxxxx Xxxxx 0000 0xx Xxxxxx Xxxxx Xxxxxxxxxxxx Xxxxx XX 01/01/2017
171 PCF II 0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 12/01/2016
CUT-OFF
MORTGAGE DATE ORIGINAL TERM REMAINING TERM ORIGINAL MORTGAGE
LOAN NO. BALANCE NOTE DATE TO MATURITY TO MATURITY AMORT. TERM(9) RATE ARD LOAN
----------------------------------------------------------------------------------------------------
10 $46,260,000 12/15/2006 84 83 IO 5.935% Yes
24 $20,625,000 12/29/2006 60 59 IO 5.540% No
49 $13,971,230 12/18/2006 120 119 240 5.800% No
51 $13,387,505 12/14/2006 120 119 360 5.540% No
58 $10,400,000 01/10/2007 120 120 IO 5.780% Yes
64 $ 9,000,000 12/21/2006 120 119 360 5.490% No
71 $ 8,800,000 12/28/2006 120 119 IO 5.910% Yes
73 $ 8,591,981 12/14/2006 120 119 360 5.540% No
85 $ 7,500,000 01/08/2007 120 120 300 5.710% No
87 $ 6,794,334 12/05/2006 120 119 360 5.980% No
91 $ 6,500,000 12/08/2006 120 119 420 5.940% Yes
102 $ 5,550,000 12/20/2006 120 119 360 5.890% Yes
107 $ 5,320,000 12/08/2006 120 119 360 5.900% No
113 $ 5,097,423 12/21/2006 120 119 420 6.160% No
127 $ 4,300,000 11/30/2006 120 118 360 5.930% No
141 $ 3,050,000 11/21/2006 126 124 360 5.990% Yes
151 $ 2,298,851 12/08/2006 120 119 420 6.190% No
154 $ 2,226,333 11/14/2006 120 118 360 6.040% No
157 $ 2,148,161 12/29/2006 120 119 360 5.880% No
159 $ 1,998,303 12/21/2006 120 119 360 5.910% No
160 $ 1,998,303 12/07/2006 120 119 360 5.910% No
161 $ 1,997,467 12/18/2006 120 119 300 6.040% No
164 $ 1,600,000 12/08/2006 120 119 IO 5.900% No
165 $ 1,598,695 12/29/2006 120 119 360 6.060% No
166 $ 1,548,808 12/12/2006 120 119 360 6.280% No
171 $ 639,118 11/28/2006 120 118 360 6.680% No
1-2
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 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 Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of 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 (other than with
respect to certain agreements relating to servicing rights and the rights of a
holder of a related companion loan pursuant to a co-lender or other agreement);
provided that recording and/or filing of various transfer documents are to be
completed after the Closing Date as contemplated hereby and by the Pooling and
Servicing Agreement. Upon the consummation of the transactions contemplated by
this Agreement, Seller will have validly and effectively conveyed to 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 (other than
with respect to certain agreements relating to servicing rights and the rights
of a holder of a related companion loan pursuant to a co-lender or other
agreement); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to Purchaser or
its designee does not require Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
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 (12) month period
(or since the date of origination of the Mortgage Loan if the Mortgage Loan was
originated within the past twelve (12) months) immediately preceding the Cut-Off
Date, in each case, without giving effect to any applicable grace period.
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 Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such 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 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
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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 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 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 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
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written instruments, all of which are included in the related Mortgage File and
none of the Mortgage Loans has been materially modified since January 19, 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 within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to 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 within 18 months prior to the Cut-Off 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. 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 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, (x) 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, (y) 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,
and (z) the Mortgaged Property securing each Mortgage Loan is located on or
adjacent to a public road, or has access to an easement permitting ingress and
egress.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a pro forma or marked-up title insurance commitment or escrow
instructions binding on the title insurer irrevocably obligating the title
insurer to issue such title insurance policy (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, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, the security
interest in each of which parcel is granted by a Mortgage and such Mortgage (and
therefore the related Title Policy) may be in an amount less than the original
principal amount of the Mortgage Loan, but such Mortgages, in the aggregate, are
not less than the total original principal amount of the Mortgage Loan, and
provided that such amount is at least equal to the allocated Mortgage Loan
amount, as evidenced by the Mortgage Loan documents. 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
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omission, anything that would materially impair the coverage under such Title
Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to Trustee, such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of Trustee without
the consent of, or notice to, the insurer. To 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.
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 and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
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 Seller, 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) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an "Environmental
Report") has been delivered to Purchaser, and Seller has no knowledge
of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. Each Mortgage requires the related Mortgagor to
comply with all applicable federal, state and local environmental laws
and regulations. Where such Environmental Report 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
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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) standards. Each Mortgage Loan set forth
on Schedule C to this Exhibit 2 (each, a "Schedule C Loan") is the
subject of a Secured Creditor Impaired Property Policy, issued by the
issuer set forth on Schedule C (the "Policy Issuer") and effective as
of the date thereof (the "Environmental Insurance Policy"). Except as
set forth on Schedule A to this Exhibit 2, with respect to each
Schedule C Loan, (i) to Seller's knowledge, the Environmental
Insurance Policy is in full force and effect, (ii)(a) A PROPERTY
CONDITION OR ENGINEERING REPORT WAS PREPARED WITH RESPECT TO LEAD
BASED PAINT ("LBP") AND RADON GAS ("RG") AT EACH MORTGAGED PROPERTY
THAT IS USED AS A MULTIFAMILY DWELLING, AND WITH RESPECT TO ASBESTOS
CONTAINING MATERIALS ("ACM") AT EACH RELATED MORTGAGED PROPERTY AND
(b) if such report disclosed the existence of a material and adverse
LBP, ACM or RG environmental condition or circumstance affecting the
related Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage Loan
or provide additional security, or establish with the lender a reserve
from loan proceeds, in an amount deemed to be sufficient by Seller for
the remediation of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iii) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge
of any material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of LBP, ACM
or RG) that was not disclosed to the Policy Issuer in one or more of
the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through
the maturity of the policy's term and the term of such policy extends
at least five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off 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 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
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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 Seller nor, to 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 or material 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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. Sections
1251 et seq.), the Clean Air Act (42 U.S.C. Sections 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 or any guarantor of any
non-recourse exceptions and environmental liability 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 (a)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by (b) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law but (subject to
the limitations set forth in the foregoing clauses (a) and (b)) such limitations
or unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. 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 that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premium
or yield maintenance charges.
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
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the
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lesser of the principal balance of the related Mortgage Loan and the replacement
cost of the improvements located at the Mortgaged Property, and not less than
the amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property, and the policy contains no provisions for a
deduction for depreciation; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to twelve months of operations of the
Mortgaged Property estimated as of the date of origination by the originator of
such Mortgage Loan consistent with its capital markets conduit lending
practices; (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. Each 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, reduction of coverage 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 (or at the lender's option 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 average return
period 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 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 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:
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(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 Seller and related lessor) does
not prohibit the current use of the 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
Purchaser and Trustee as its assignee upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required for
assignment to Purchaser, it has been obtained prior to the Closing
Date) and is further assignable by 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 either has been
obtained 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, Seller
has received no notice that an event of default has occurred
thereunder, and, to 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 (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 Maturity Date of the related Mortgage Loan;
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(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
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; and
(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
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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.
21. Advancement of Funds by 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 Usury Laws. Each Mortgage Loan complied with (or
is exempt from) all applicable usury laws and any other applicable material 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 or objectively determinable 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 Borrower 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. Section 1.1001-3 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 reasonable cost of such opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
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. Neither Seller
2-10
nor any affiliate thereof has any obligation to make a capital contribution to
the Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. To 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 giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan (other than payments due but not yet thirty (30) days or more
delinquent), 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 Seller elsewhere in this Exhibit 2 or the
exceptions listed in Schedule A attached hereto.
28. Inspections. Seller (or if 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 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.
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 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. The servicing and collection practices used by Seller
or 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 Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of
2-11
origination of each Mortgage Loan or as of the date of the sale of the related
Mortgage Loan by 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.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED
LIVING FACILITY].
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
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, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
2-12
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 the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is at least two years after the Closing Date, (ii) 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
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. 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 Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not 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 in certain cases if the Mortgage Loan has an
2-13
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 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. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to 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. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-14
SCHEDULE A TO EXHIBIT 2
Exceptions to Representations and Warranties
REP NO. 7 - CONDITION OF PROPERTY; CONDEMNATION
LOAN NO. - 755566 (WEST LODI SELF STORAGE)
EXPLANATION -The property does not have direct or indirect access to a public
road. The loan is fully recourse to Borrower and Guarantor until such time as an
access easement is recorded which provides title-insured access over an
adjoining site (owned by an affiliate of the Borrower) to the adjacent public
road. The LTV for the property is 44.8%.
REP NO. 14 - INSURANCE
LOAN 755491 (550 XXXXXXXX DRIVE)
EXPLANATION - Fire and extended perils and loss of rents coverage was waived as
the security for this loan is land only and the tenant (Best Buy Stores, LP)
does not have termination or abatement rights in their lease.
LOAN 755520 (1901 N FEDERAL HWY)
EXPLANATION - The liability coverage is carried on a $500,000 per occurrence
basis however, the tenant (TSA Stores, Inc) has a general aggregate limit of
$9,500,000.
LOAN 755531 (1307 EAST NORTH AVENUE)
EXPLANATION - Loss of Rents coverage was waived because the single tenant
(Hy-Vee Inc.) has no right to xxxxx rent or terminate the lease due to a
casualty event. In addition, Lender is not listed as Loss Payee on the
certificate. Loss Payee refers to Loss of Rents coverage, and since this is not
required, this is not applicable.
REP. XX. 00 - XXXXXXXXX XXXXXX
XXXX XX. - 000000 (1901 NORTH FEDERAL HIGHWAY)
EXPLANATION -Mortgagee does not have the right to hold and disburse casualty and
condemnation proceeds for repair or restoration. The insurance and condemnation
proceeds are paid jointly to the ground lessor, lessee and mortgagee as their
interest appear and are held and disbursed by the ground lessor.
REP. NO. 29 - LOCAL LAW COMPLIANCE
Loan No. 755490 (Lakeshore Village Apartments)
Explanation - THE PROPERTY IS LEGAL NON-CONFORMING WITH
RESPECT TO VIOLATION OF BUILDING SETBACK LINES. THE CURRENT
REQUIRED SIDE SETBACK LINE IS 20 FEET AND THE PROPERTY HAS A SIDE
SETBACK OF 19.54 FEET (DEFICIENT .46 FEET). THE CURRENT REQUIRED
REAR SETBACK LINE IS 50 FEET AND THE PROPERTY HAS A REAR SETBACK
OF 18.81 FEET (DEFICIENT 31.19 FEET). THE PROPERTY IS LEGAL
NON-CONFORMING WITH RESPECT TO VIOLATION OF LOT AREA
REQUIREMENTS. THE CURRENT REQUIRED LOT AREA IS 663,500 SQ. FT.
AND THE PROPERTY HAS A LOT AREA OF 367,337 SQ. FT. (DEFICIENT
296,163SF). THE PROPERTY IS LEGAL NON-CONFORMING WITH RESPECT TO
PARKING. ZONING REQUIRES 468 SPACES, AND THE PROPERTY HAS 323
SPACES (DEFICIENT 145 SPACES). THE PROPERTY CAN BE RESTORED TO
ITS EXISTING STATE UNLESS THERE IS CASUALTY DAMAGE OF MORE THAN
50% OF THE STRUCTURE. THE PROPERTY HAS 10 BUILDINGS AND THE LTV
IS 67.7%. IN ADDITION, LAW AND ORDINANCE INSURANCE IS BEING
CARRIED.
REP NO. 33 - LICENSES AND PERMITS
LOAN NO. - 755482 (UNION SQUARE SHOPPING CENTER)
EXPLANATION - Only a temporary CO was issued for the tenant, Allstate (approx
9.8% of NRA). A recourse carve-out was added whereby Borrower and Guarantor are
personally liable for any loss or damage associated with the failure to obtain a
final certificate of occupancy.
REP. NO. 37 - SINGLE PURPOSE ENTITY
Loan No. 755452 (Xxxx Eagle Village Apartments)
EXPLANATION -Borrower is not required to be an SPE nor an SAE. The LTV for the
property is 63.4%. The Borrowing entity can only own two other apartment
complexes besides the Mortgage Property (Cedar Tree Apartments (162 units) and
Oak Tree Apartments (299 units). Cedar Tree Apartments is an $8.6M loan in this
pool.
LOAN NO. 755557 (RESIDENCE INN TUDOR WHARF)
EXPLANATION - The Borrower is permitted to have indebtedness for equipment
leases in an amount not to exceed $1,000,000.
SCHEDULE B TO EXHIBIT 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
None
SCHEDULE C TO EXHIBIT 2
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $2,445,725,328
Less Expenses $4,200,620
----------
Net Proceeds $2,449,925,948
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,846,030,231
Allocable Expense Amount for MS Loans $3,179,813
----------
Purchase Price of MS Loans $1,849,210,045
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $402,997,949
Allocable Expense Amount for LaSalle Loans $685,122
--------
Purchase Price of LaSalle Loans $403,683,071
Less Purchase Price of PCF II Loans
Discounted Value of PCF II Loans $196,697,148
Allocable Expense Amount for PCF II Loans $335,684
--------
Purchase Price of PCF II Loans $197,032,832
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Principal Commercial Funding II, 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 February 15, 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 and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
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 February, 2007.
SELLER: PRINCIPAL COMMERCIAL FUNDING II, LLC
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
-------------------------------
Name:
-------------------------
Title:
-----------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of February 15, 2007 (the "Mortgage Loan Purchase Agreement"), between
Principal Commercial Funding II, LLC ("PCFII") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), PCFII is selling certain multifamily and commercial mortgage
loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated
as of February 1, 2007 (the "Pooling and Servicing Agreement"), between the
Depositor, Capmark Finance Inc., as Master Servicer, X.X. Xxxxxx Company, Inc.
("JER") as Special Servicer, LaSalle Bank National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent and Xxxxx Fargo Bank, National
Association ("WFB") as Trustee and Custodian, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, PCFII has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, PCFII does hereby make, constitute and appoint WFB, acting
solely in its capacity as Trustee under, and in accordance with the terms of,
the Pooling and Servicing Agreement, PCFII's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in PCFII's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with respect to the
Mortgage Loans which are customarily and reasonably necessary or appropriate to
assign agreements, documents and instruments pertaining to the Mortgage Loans,
in each case in favor of the Trustee as set forth in the definition of "Mortgage
File" in, and in accordance with Section 1.1 of, the Pooling and Servicing
Agreement, and to evidence, provide notice of and
4-1
perfect such assignments and conveyances in favor of the Trustee in the public
records of the appropriate filing and recording offices; and (ii) to file or
record in the appropriate public filing or recording offices, all other Mortgage
Loan documents to be recorded under the terms of the Pooling and Servicing
Agreement or any such Mortgage Loan documents which have not been submitted for
filing or recordation by PCFII on or before the date hereof or which have been
so submitted but are subsequently lost or returned unrecorded or unfiled as a
result of actual or purported defects therein, in order to evidence, provide
notice of and perfect such documents in the public records of the appropriate
filing and recording offices. Notwithstanding the foregoing, this Limited Power
of Attorney shall grant to WFB and JER only such powers, responsibilities and
authority as are set forth in Section 2.1 of the Mortgage Loan Purchase
Agreement.
PCFII does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
PCFII's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in PCFII's name, place and stead solely to exercise and perform all of the
rights, authority and powers of WFB as set forth in the preceding paragraph in
the event of the failure or the incapacity of WFB to do so for any reason. As
between JER and any third party, no evidence of the failure or incapacity of WFB
shall be required and such third party may rely upon JER's written statement
that it is acting pursuant to the terms of this Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as PCFII's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as PCFII might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and PCFII agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between PCFII, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as PCFII's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on PCFII and PCFII's successors and assigns.
This Limited Power of Attorney shall continue in full force and effect with
respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling and
Servicing Agreement;
with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under the
terms of the Pooling and Servicing Agreement;
with respect to the Trustee, the appointment of a receiver or conservator
with respect to the business of the Trustee, or the filing of a voluntary
or involuntary petition in bankruptcy by or against the Trustee;
with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or the
filing of a voluntary or involuntary petition in bankruptcy by or against
the Special Servicer;
with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund;
with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance with its
terms; and
with respect to the Special Servicer, the occurrence of an Event of Default
under the Pooling and Servicing Agreement with respect to the Special
Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties
or obligations of PCFII under the Mortgage Loan Purchase Agreement, and nothing
herein shall constitute a waiver of any rights or remedies under the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY 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.
[Signature on next page]
IN WITNESS WHEREOF, PCFII has caused this instrument to be executed and its
corporate seal to be affixed hereto by its officer duly authorized as of
February 28, 2007.
PRINCIPAL COMMERCIAL FUNDING II, LLC.
By: PRINCIPAL REAL ESTATE INVESTORS, LLC, a
Delaware limited liability company, as its
manager
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ACKNOWLEDGEMENT
STATE OF )
) ss:
COUNTY OF )
On this ____ day of February, 2007, before me appeared ____________________
_______________________, and _____________________________________ to me
personally known, who, being by me duly sworn did say that he/she and he/she are
the _____________________ and ____________________________ of Principal
Commercial Funding II, LLC, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed in behalf of said corporation by authority of its board of
directors, and said __________________ acknowledged said instrument to be the
free act and deed of said corporation.
Name:
------------------------------
Notary Public in and for said
County and State
My Commission Expires:
_______________________
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
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:
Capmark Finance Inc.
AND WHEN RECORDED MAIL TO:
CAPMARK FINANCE INC.
[ADDRESS]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER)
KNOW ALL MEN BY THESE PRESENTS, that XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as trustee and custodian for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of February 1, 2007
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint CAPMARK FINANCE INC., as Master Servicer under the Pooling and Servicing
Agreement ("Capmark"), 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 Capmark to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by Capmark
of its duties as Master Servicer under the Pooling and Servicing Agreement,
giving and granting unto Capmark 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 Capmark 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 ___________, 2007.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as trustee and custodian for Xxxxxx
Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2007-HQ11
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________ before me, _________________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
X.X. XXXXXX COMPANY, INC.
AND WHEN RECORDED MAIL TO:
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx
Attention: [____________]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as trustee and custodian for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of February 1, 2007
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint X.X. XXXXXX COMPANY, 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 __________, 2007.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as trustee and custodian for Xxxxxx
Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2007-HQ11
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
[Form of 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:
7. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
8. 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)
9. How will title be held
10. Source of cash for down payment
11. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and XXXX xxx Xxx-xxxxx XXX XXXX
00. 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: Principal 40% - $
Capmark, Master Serv. 10% - $
JER, 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:
8. 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.
9. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
10. 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
11. 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 common size Income statement for minimum of two (2)
years (request three (3) years, if available);
12. Explain results of credit checks, legal searches and banking credit
references (two required)
13. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
S-2-3
14. 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)
2. 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)
3. Describe any material issues requiring remediation contained in original
reports
4. Describe current status of issue and remediation
ESCROW STATUS:
2. Explain status of all reserves
PROPERTY MANAGEMENT SUMMARY:
3. Who is proposed property management firm
4. Background and Experience
COLLATERAL VALUATION:
3. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
4. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. 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:
3. State recommendation for approval.
4. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
S-2-4
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:
X.X. XXXXXX COMPANY, INC., acting
solely in its capacity as Special
Servicer
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
S-2-5
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
16. Financial statements of purchasing entity and any guarantors (audited, if
available)
17. Financial statement of selling entity only if available
18. Bank and /or credit references for transferee
19. Credit report for principal(s) of the proposed borrowing entity.
20. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
21. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
22. Most recent Property Inspection report
23. Original Asset Summary for Mortgaged Property
24. Purchase and Sale Agreement
25. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
26. Proposed property management agreement
27. Description and source of equity being used for the purchase, if available
28. Most recent Rent Roll
29. Copy of Promissory Note, Mortgage and any Loan Agreement
30. Other items as required by the description set forth above
S-2-6
EXHIBIT V
[Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Services]
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:
9. 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
10. State amount and purpose of Lien/Financing
11. Interest Rate
12. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
13. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
14. Collateral pledged or mortgaged as security:
15. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
16. Complete the chart below:
S-2-2
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)
2. 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:
2. Explain status of all Reserves
COLLATERAL VALUATION:
3. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
4. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. 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.
S-2-3
RECOMMENDATION:
3. State recommendation for approval.
4. 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:
X.X. XXXXXX COMPANY, INC., acting solely
in its capacity as Special Servicer
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
S-2-4
SCHEDULE OF EXHIBITS TO ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE
FINANCING SUBMISSION
9. Most recent Income & Expense Statement for property and operating statement
review
10. Original Asset Summary for Mortgaged Property
11. [FOR MEZZANINE FINANCING: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
12. [FOR SUBORDINATE MORTGAGE: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
13. Copy of Note, Mortgage and any Loan Agreement
14. Copy of subordinate loan documents in substantially the form to be executed
15. Most recent Rent Roll.
Other items as required by the description set forth above
S-2-5
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:
LaSalle Bank National Association, as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Global Securities and Trust Services
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-HQ11
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (the "Certificates")
In accordance with the Pooling and Servicing Agreement, dated as of
February 1, 2007 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Capmark Finance Inc., as Master Servicer, X.X. Xxxxxx
Company, Inc., as Special Servicer, Xxxxx Fargo Bank, National Association,
as Trustee and Custodian, and LaSalle 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:
1.1.1 Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
___ a full defeasance of the payments scheduled to be due in respect
of the entire Principal Balance of the Mortgage Loan; or
___ a partial defeasance of the payments scheduled to be due in
respect of a portion of the Principal Balance of the Mortgage
Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the Mortgage, has an
allocated loan amount of $____________ or _______% of the entire
Principal Balance;
1.1.2 Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on EXHIBIT A hereto, which
exceptions the Servicer has determined, consistent with the Servicing Standard,
will have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
A. The Mortgage Loan Documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
B. The defeasance was consummated on __________, 20__.
C. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are rated 'AAA' by
Standard & Poor's, (iv) if they include a principal obligation, the
principal due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
D. The Servicer received an opinion of counsel (from counsel approved
by Servicer in accordance with the Servicing Standard) that the defeasance
will not result in an Adverse REMIC Event.
E. The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") as to which one of the
statements checked below is true:
___ the related Mortgagor was a Single-Purpose Entity (as defined in
Standard & Poor's Structured Finance Ratings Real Estate Finance
Criteria, as amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
___ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance collateral; or
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.
F. The Servicer received a broker or similar confirmation of the
credit, or the accountant's letter described below contained statements
that it reviewed a broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which account is
maintained as a securities account by the Trustee acting as a securities
intermediary.
G. 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").
H. The Servicer received from the Mortgagor written confirmation from
a firm of independent certified public accountants, who were approved by
Servicer in accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the defeasance
collateral (without taking into account any earnings on reinvestment of
such revenues) will be sufficient to timely pay each of the Scheduled
Payments after the defeasance including the payment in full of the Mortgage
Loan (or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan, on its
Anticipated Repayment Date), (ii) the revenues received in any month from
the defeasance collateral will be applied to make Scheduled Payments within
four (4) months after the date of receipt, and (iii) interest income from
the defeasance collateral to the Defeasance Obligor in any calendar or
fiscal year will not exceed such Defeasance Obligor's interest expense for
the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
I. The Servicer received opinions from counsel, who were approved by
Servicer in accordance with the Servicing Standard, that (i) the agreements
executed by the Mortgagor and/or the Defeasance Obligor in connection with
the defeasance are enforceable against them in accordance with their terms,
and (ii) the Trustee will have a perfected, first priority security
interest in the defeasance collateral described above.
J. The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on reinvestment to the
Defeasance Obligor or the Mortgagor only after the Mortgage Loan has been
paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for
S-2-3
administering the defeasance and the securities account and all fees and
expenses of maintaining the existence of the Defeasance Obligor.
K. The entire Principal Balance of the Mortgage Loan as of the date of
defeasance was $___________ [$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").
L. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the Aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
1.1.3 Certify that, in addition to the foregoing, Servicer has imposed such
additional conditions to the defeasance, subject to the limitations imposed by
the Mortgage Loan Documents, as are consistent with the Servicing Standard.
1.1.4 Certify that EXHIBIT B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and delivered in connection with
the defeasance described above and that originals or copies of such agreements,
instruments and opinions have been transmitted to the Trustee for placement in
the related Mortgage File or, to the extent not required to be part of the
related Mortgage File, are in the possession of the Servicer as part of the
Servicer's Mortgage File.
1.1.5 Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement.
1.1.6 Certify that the individual under whose hand the Servicer has caused
this Notice and Certification to be executed did constitute a Servicing Officer
as of the date of the defeasance described above.
1.1.7 Agree to provide copies of all items listed in EXHIBIT B to you upon
request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER:
-------------------------------
By:
------------------------------------
Name:
Title:
S-2-4
EXHIBIT AA
Form of Primary Servicing Agreement
(CAPMARK)
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) X.X Xxxxxx Company, 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 Xxxxxxxx-Xxxxx Certification
CERTIFICATION
Re: XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-HQ11, issued pursuant to the Pooling and Servicing
Agreement dated as of February 1, 2007 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, Capmark Finance Inc., as
master servicer (the "Master Servicer"), X.X. Xxxxxx Company, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as trustee and custodian (the
"Trustee") and LaSalle Bank National Association, as paying agent, certificate
registrar and authenticating agent (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-HQ11 (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 Capmark Finance Inc., as Master Servicer;
o X.X. Xxxxxx Company, Inc., as Special Servicer;
o LaSalle Bank National Association, as Paying Agent, Certificate
Registrar and Authenticating Agent;
o Wells Fargo Bank, National Association, as Trustee and Custodian;
o [names of sub-servicers]
Date: [___]
By
--------------------------------------
Name:
Title:
EXHIBIT CC-1
Form of Xxxxxxxx-Xxxxx Backup 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-HQ11, issued pursuant to the Pooling and Servicing
Agreement dated as of February 1, 2007 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, Capmark Finance Inc., as
master servicer (the "Master Servicer"), X.X. Xxxxxx Company, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as trustee and custodian and
LaSalle 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 TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
February 28, 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-HQ11, Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 - [Name of Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Trust 2007-HQ11, Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11 (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-HQ11 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"). LaSalle Bank National Assocaition,
as Paying Agent, Certificate Registrar and Authenticating 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 Capmark Finance Inc., 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 Trustee and Custodian for the Holders of the Xxxxxx Xxxxxxx Capital I Trust
2007-HQ11, Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SCHEDULE I TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx
Capmark Finance Inc.
[ADDRESS]
LaSalle Bank National Association,
as Paying Agent, Certifiate Registrar and Authenticating Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, National Association,
as Trustee and Custodian
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
SCHEDULE II TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
(MSCI 2007-HQ11 Collection Account Information)
SCHEDULE I
LASALLE MORTGAGE LOAN SCHEDULE
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE
--------------------------------------------------------------------------------------------------------------------------
00 XxXxxxx Xxxxxxxxx Xxxxx Center 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX
17 LaSalle 600 West Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX
00 XxXxxxx Xxxx Xxx- Xxxxxxxx (A) 000 Xxxxxxx Xxxxx, XX Xxxxxxxx XX
00 XxXxxxx Xxxx Xxx- Xxxxxx XX (A) 0000 Xxxxxx Xxxxxx XX Xxxxx Xxxxxx XX
20 LaSalle Jade Pig - Harrison (A) 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XX
21 LaSalle Jade Pig- Kalamazoo D&W (A) 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX
00 XxXxxxx XxXxxx Building 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX
25 LaSalle 000 Xxxxxx Xxxxxx Xxxx 000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx XX
00 XxXxxxx Xxxxx Xxxxx 0000-0000 Xxxxx Xxxxxx Xxxxxxxxx XX
00 XxXxxxx Xxxxxx Xxxx Crossing 00000 XxXxxxxx Xxxx Xxxxxx Xxxx XX
00 XxXxxxx XXX Xxxxxxxxx I 0000 Xxxxxxxxx Xxxxx Xxxxxx XX
45 LaSalle Foothill Ranch 41 & 00 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX
00 XxXxxxx Xxxxxxxx Xxxx Apts 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX
00 XxXxxxx Xxxxxx Xxxxx Properties 00000 Xxx Xxxx Xxxxxxxx Xxxxxxx XX
52 LaSalle Flying Flags RV Park 000 Xxxxxx xx xxx Xxxxx Xxxxxxxx XX
00 XxXxxxx Xxxx Xxxxxx Plaza 000 Xxxxx Xxxx Xxxxxx Xxxxx XX
00 XxXxxxx Xxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxx XX
00 XxXxxxx Xxxxxxxx Xxxxxxx Shopping Center 0000-0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX
00 XxXxxxx Xxxxxxxxxx II 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX
00 XxXxxxx Xxxxxxxxxxx Xxxxxx 0000, 4136, 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX
00 XxXxxxx Xxxx Xxxxx Xxxxxxxx Xxxxxx 000-000 Xxxx Xxxxx Xxxx Xxxxxxxxx XX
82 LaSalle Chesapeake Xxxxxx 0000 & 0000 Xxxxxxxxxx Xxxxx Xxxxxxx Xxxx XX
00 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX
00 XxXxxxx Xxxxxx Xxxxx 000 X Xxxxxx Xxx Xxxxx XX
00 XxXxxxx Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxxx 000 Xxxxx Xxx Xxxx Xxxxxxxxxx XX
CUT-OFF ORIGINAL REMAINING ORIGINAL
MORTGAGE MATURITY DATE TERM TO TERM TO AMORT. MORTGAGE ARD
LOAN NO. DATE BALANCE NOTE DATE MATURITY MATURITY TERM RATE LOAN
--------------------------------------------------------------------------------------------
11 01/01/2017 $45,949,650 12/11/2006 120 119 360 5.500% No
17 01/01/2017 $26,500,000 12/15/2006 120 119 360 5.610% No
18 01/01/2017 $11,738,758 12/15/2006 120 119 360 5.400% No
19 01/01/2017 $ 6,144,063 12/15/2006 120 119 360 5.400% No
20 01/01/2017 $ 3,891,740 12/15/2006 120 119 360 5.400% No
21 01/01/2017 $ 3,201,307 12/15/2006 120 119 360 5.400% No
22 11/01/2013 $21,000,000 10/17/2006 84 81 IO 6.180% No
25 01/01/2017 $20,500,000 12/04/2006 120 119 360 6.280% No
29 01/01/2017 $16,700,000 12/07/2006 120 119 360 5.680% No
42 09/01/2011 $15,800,000 04/27/2006 64 55 IO 6.260% No
43 12/01/2016 $15,125,000 11/29/2006 120 118 360 6.143% No
45 01/01/2017 $14,600,000 12/05/2006 120 119 360 6.180% No
47 12/01/2016 $14,000,000 11/27/2006 120 118 360 5.850% No
48 09/01/2016 $14,000,000 09/01/2006 120 115 360 5.970% No
52 12/01/2016 $12,278,024 11/29/2006 120 118 360 5.720% No
54 12/01/2016 $12,000,000 12/01/2006 120 118 IO 5.620% No
65 12/01/2016 $ 9,000,000 12/01/2006 120 118 IO 5.620% No
72 12/01/2016 $ 8,700,000 11/20/2006 120 118 360 6.280% No
77 01/01/2017 $ 8,200,000 12/08/2006 120 119 360 6.153% No
80 01/01/2017 $ 8,111,325 12/07/2006 120 119 360 6.030% No
81 12/01/2016 $ 8,000,000 11/30/2006 120 118 360 5.850% No
82 12/01/2016 $ 8,000,000 11/03/2006 120 118 360 5.900% No
83 12/01/2016 $ 7,936,155 11/30/2006 120 118 360 5.820% No
89 12/01/2016 $ 6,700,000 12/01/2006 120 118 IO 5.620% No
90 01/01/2017 $ 6,691,024 12/06/2006 120 119 300 5.750% No
92 LaSalle Independence Plaza 000 Xxxx Xxxxxx Xxx Xxxxx XX
00 XxXxxxx Xxxxxxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
00 XxXxxxx Xxxxx Xxxxx 000-000 Xxxx Xxxxxx Xxxxxx Xxxxx XX
99 LaSalle 000 Xxxxx Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
000 XxXxxxx XX - Xxxx Xxxxxxx Xxxxxxxx, XX 000 Xxxxxxx Xxxxxx Xxxxxxxx XX
104 LaSalle Wildrose 9116 & 0000 Xxxxxxx Xxxxx Xxxxxx XX
000 XxXxxxx Xxxxxx Xxxxxx Colony 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx XX
000 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxxx, XX 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX
111 LaSalle Euronet Building 00000 Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XX
000 XxXxxxx Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxxxxx XX
000 XxXxxxx Xxxxxxx Xxx - Xxxxxx, XX 000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX
000 XxXxxxx 0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx XX
000 XxXxxxx Xxx Xxxxx Retail 0000 Xxxx Xxxxx Xxxx Xxxxx Xxx Xxxxx XX
163 LaSalle DoMar Properties 3815, 3827, & 0000 0xx Xxxxxx Xxxxx Xxxxxxxxxx XX
92 12/01/2016 $ 6,300,000 11/30/2006 120 118 IO 5.560% No
97 01/01/2017 $ 5,864,174 12/07/2006 120 119 360 6.030% No
98 12/01/2016 $ 5,750,000 12/01/2006 120 118 IO 5.560% No
99 12/01/2016 $ 5,600,000 11/17/2006 120 118 360 5.930% No
101 11/01/2016 $ 5,569,570 10/19/2006 120 117 240 6.960% No
104 12/01/2016 $ 5,490,073 11/27/2006 120 118 360 5.680% No
105 12/01/2016 $ 5,440,000 11/30/2006 120 118 360 5.900% No
110 11/01/2016 $ 5,278,478 10/31/2006 120 117 300 5.940% No
111 01/01/2017 $ 5,245,274 12/04/2006 120 119 360 5.680% No
112 01/01/2017 $ 5,233,693 12/07/2006 120 119 360 6.030% No
114 12/01/2016 $ 5,087,352 11/20/2006 120 118 300 6.160% No
120 01/01/2017 $ 4,721,032 12/07/2006 120 119 360 5.950% No
155 12/01/2011 $ 2,175,000 11/21/2006 60 58 360 6.390% No
163 12/01/2016 $ 1,797,008 11/28/2006 120 118 360 6.000% No
SCHEDULE II
MSMC MORTGAGE LOAN SCHEDULE
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE
----------------------------------------------------------------------------------------------------------------------------------
1 MSMC One Seaport Plaza 000 Xxxxx Xxxxxx Xxx Xxxx XX
2 MSMC 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX
3 MSMC RREEF Portfolio - Xxxxxx'x Crossing (I) 000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
3 MSMC RREEF Portfolio - Lionsgate (I) 00000 Xxxxxx Xxxxxx Xxxxxxx XX
3 MSMC RREEF Portfolio - University Heights (I) 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX
3 MSMC RREEF Portfolio - Carlyle Station (I) 00000 Xxxxxx Xxxx Xxxxxxxx XX
3 MSMC RREEF Portfolio - XxXxxx Farms (I) 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
3 MSMC RREEF Portfolio - Fox Run (I) 2 Observation Court Germantown MD
3 MSMC RREEF Portfolio - Xxxxxxx Station (I) 00 Xxxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX
3 MSMC RREEF Portfolio - The Xxxx (I) 00 Xxxxxxxx Xxx XX Xxxxxxxx XX
4 MSMC 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX
5 MSMC Galleria at Pittsburgh Xxxxx 000 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX
6 MSMC 000 X'Xxxxxx Xxxxx 000 X'Xxxxxx Xxxxx, XX Xxxxxxxxxx XX
7 MSMC Deptford Mall 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX
0 XXXX Xxxxxxxx Xxxxxxxxx Xxxx Center 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx XX
0 XXXX Xxxxxx Xxxxxxxxx & Towers 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx VA
12 MSMC The Greens at Green Valley 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX
13 MSMC Casa Xxxxx Plaza 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxx XX
14 MSMC Westin - Palo Alto 000 Xx Xxxxxx Xxxx Xxxx Xxxx XX
15 MSMC Arrowhead Fountains (II) 00000 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
Center Drive
15 MSMC Xxxxxxx Office Building (II) 00 Xxxx Xxx Xxxxx Xxxxxx Xxxxxxxxx XX
15 MSMC Sheridan Center (II) 1777, 1780, and 0000 Xxxxx Xxxxxxxx Xxxxxx XX
Xxxxxx
CUT-OFF ORIGINAL REMAINING ORIGINAL
MORTGAGE MATURITY DATE TERM TO TERM TO AMORT. MORTGAGE ARD
LOAN NO. DATE BALANCE NOTE DATE MATURITY MATURITY TERM RATE LOAN
---------------------------------------------------------------------------------------------
1 01/09/2017 $225,000,000 12/20/2006 120 119 IO 5.168% No
2 02/08/2017 $172,000,000 01/18/2007 120 120 IO 5.540% No
3 12/08/2011 $ 33,104,878 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 23,646,341 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 22,632,927 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 20,437,195 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 16,214,634 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 9,627,439 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 7,431,707 12/08/2006 60 58 IO 5.470% No
3 12/08/2011 $ 5,404,878 12/08/2006 60 58 IO 5.470% No
4 02/11/2017 $135,000,000 01/22/2007 120 120 IO 5.608% No
5 01/08/2012 $133,000,000 12/28/2006 60 59 IO 6.166% No
6 12/08/2016 $ 90,000,000 12/08/2006 120 118 IO 5.795% No
7 01/05/2013 $ 80,000,000 12/07/2006 72 71 IO 5.323% No
8 01/05/2014 $ 69,600,000 12/19/2006 84 83 IO 5.510% No
9 01/05/2014 $ 54,400,000 12/12/2006 84 83 IO 5.620% No
12 01/08/2012 $ 38,400,000 01/03/2007 60 59 IO 5.720% No
13 01/01/2014 $ 37,950,000 12/08/2006 84 83 IO 5.480% No
14 02/01/2017 $ 35,000,000 01/03/2007 120 120 300 5.770% No
15 11/08/2013 $ 15,000,000 11/08/2006 84 81 IO 6.130% No
15 11/08/2013 $ 11,300,000 11/08/2006 84 81 IO 6.130% No
15 11/08/2013 $ 7,200,000 11/08/2006 84 81 IO 6.130% No
16 MSMC Crossing Place Apartments 0000 Xxxxxxxx Xxxxx Xxxxxx XX
00 XXXX Xxxxxxxx Xxxxxxxxx - Xxxxxxxxxx 000-000 Xxxxx Xxxxx Xxxxxxxxxx XX
Shopping Center (III)
23 MSMC Platinum Portfolio - Xxxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxxxxxxxx XX
Building (III)
00 XXXX Xxxxxxxx Xxxxxxxxx - Xxxxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX
/ Centra Bank Building (III)
23 MSMC Platinum Portfolio - Eastpointe 105, 109, & 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX
Business Park (III)
00 XXXX Xxxxxxxx Xxxxxxxxx - Xxxxxxxx 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX
Corporate Center (III)
00 XXXX Xxxx Xxx Retail 979 & 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxx XX
00 XXXX Xxxxxxxxx Xxxx Xxxxx 1025 Veterans Parkway Clarksville IN
28 MSMC Regal Cinema - Lincolnshire 000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX
30 MSMC Pennsylvania Retail Portfolio - Weis Xxxx Xxxx Xxxx Xx & Xxxxx 000 Xxxxxxxx Xxxxxxxx XX
Xxxx Lake (B)
31 MSMC Pennsylvania Retail Portfolio - 000 Xxxxxx Xx Xxxx xx Xxxx XX
Staples York (B)
32 MSMC Pennsylvania Retail Portfolio - CVS 000 Xxxxxxxxxxxx Xx Xxxxx XX
Hockersville (B)
33 MSMC Pennsylvania Retail Portfolio - CVS 000 Xxxxxxxx Xx Xxxx Xxxxxxxx XX
Edgewood (B)
34 MSMC Pennsylvania Retail Portfolio - CVS 000 Xxxxx Xxxxxxxx Xxx Xxxx XX
Richland (B)
35 MSMC 000-000 X. Xxxxxxx Xxxx 000-000 X. Xxxxxxx Xxxx Xxxxx XX
36 MSMC PA-MD Retail Portfolio - Staples 000 Xxxxxxxxxxx Xxxx. Xxxx Xxxxxxxx XX
Susquehanna (C)
37 MSMC PA-MD Retail Portfolio - CVS 0000 Xxx Xxxxxxxxx Xx Xxxxxxxxxxx XX
Johnnycake (C)
38 MSMC PA-MD Retail Portfolio - CVS Xxxxxx 000 Xxxxxxxx Xxx. Xxxxx MD
(C)
39 MSMC PA-MD Retail Portfolio - CVS Xxxxxxx 0000 Xxxxxxx Xxxxx Xx Xxxxxxxxx XX
Ferry (C)
40 MSMC PA-MD Retail Portfolio - CVS Mt. Joy 000 Xxxx Xxxx Xx. Xxxxx Xxx XX
(C)
16 06/01/2012 $ 30,597,806 11/30/2006 66 64 IO 5.710% No
23 01/01/2017 $ 8,400,000 12/12/2006 120 119 360 5.700% No
23 01/01/2017 $ 4,800,000 12/12/2006 120 119 360 5.700% No
23 01/01/2017 $ 3,550,000 12/12/2006 120 119 360 5.700% No
23 01/01/2017 $ 3,450,000 12/12/2006 120 119 360 5.700% No
23 01/01/2017 $ 800,000 12/12/2006 120 119 360 5.700% No
26 12/09/2016 $ 20,200,000 11/17/2006 120 118 360 5.550% No
27 12/01/2016 $ 19,400,000 11/06/2006 120 118 360 5.740% No
28 02/01/2017 $ 18,125,000 02/01/2007 120 120 360 8.250% No
30 12/01/2016 $ 6,482,635 11/30/2006 120 118 420 5.840% No
31 12/01/2016 $ 3,096,482 11/30/2006 120 118 420 5.840% No
32 12/01/2016 $ 2,856,755 11/30/2006 120 118 420 5.840% No
33 12/01/2016 $ 1,962,770 11/30/2006 120 118 420 5.840% No
34 12/01/2016 $ 1,957,776 11/30/2006 120 118 420 5.840% No
35 11/01/2016 $ 16,000,000 10/20/2006 120 117 360 5.950% No
36 12/01/2016 $ 3,915,552 11/30/2006 120 118 420 5.840% No
37 12/01/2016 $ 3,875,597 11/30/2006 120 118 420 5.840% No
38 12/01/2016 $ 2,547,106 11/30/2006 120 118 420 5.840% No
39 12/01/2016 $ 2,237,458 11/30/2006 120 118 420 5.840% No
40 12/01/2016 $ 2,192,509 11/30/2006 120 118 420 5.840% No
41 MSMC PA-MD Retail Portfolio - Hazleton 0-00 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxx XX
Plaza (C)
44 MSMC Eureka Pointe Shopping Center 000-000 X. 0xx Xxxxxx Xxxxxx XX
00 XXXX Xxxxxxxx Xxxx xx Xx. Xxxxxxxxx 0 Xxxxxxxx Xxxxx Xx. Xxxxxxxxx NJ
00 XXXX Xxxxxxx Xxxxxxxxxx - Xxxxxxxx 000 Xxxx Xxxx Xxxxxxxx XX
00 XXXX Xxxxxx Xxxxxx Xxx - Xxx Xxxxxxxxx 0000 Xxx Xxxxx Xxxxx Xxxxxx XX
55 MSMC Shasta Crossroads 1315, 0000-0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX
00 XXXX Xxx Xxxx Apartments 000 Xxxx Xxxx Xxxxxx; 000 Xxxxxx Xxxxxx XX
Vanderbilt Avenue; 000 Xxxxxxxxxx
Xxxxxx
57 MSMC Xxxxx Town Center 0000 XX Xxxxxxxx Xxxxx Xxxxxxx XX
59 MSMC 000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX
60 MSMC Madison Apartments 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX
61 MSMC Xxxxxxxx Xxxxx Xxxxx 000, 000 & 000 X. Xxxxxxxxx Xxxxxx Xxxxx XX
and 0000 X. Xxxxxxx Xxxxxx
62 MSMC 00 Xxxx Xxxxx 0000-0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX
63 MSMC 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx XX
66 MSMC Hayden Place 000 Xxxx 0xx Xxxxxx Xxxxx XX
00 XXXX XxxXxxxx - Xxxx Xxxxxxx 000 Xxxxx 00 Xxxx Xxxxxxx XX
68 MSMC Easton Apartments 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX
00 XXXX Xxxxx Xxxxxx Xxxxxxx 27317-27539 Maple Valley-Black Maple Valley WA
Diamond Road
70 MSMC 0000-0000 Xxxxxxx Xxxxxxxxx 0000-0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
74 MSMC Carnegie Hotel Resort & Spa 0000 Xxxx Xxxxx xx Xxxxxxxx Xxxx Xxxxxxx Xxxx XX
75 MSMC Southbridge Plaza 00000 Xxxxxxx Xxxxx Xxxxxxxx XX
00 XXXX Xxxxxxx Xxxxxxx 000 XX 00xx Xxxxxx Xxxxxxxx XX
78 MSMC Big Springs Village 00000 XX Xxxxxxx 000 Xxxxx Xxxxxxxxxxxx XX
79 MSMC Country Inn & Suites - Atlanta 0000 Xxxxxxx Xxxx Xxxxxxx Xxxx XX
Airport
41 12/01/2016 $ 1,038,820 11/30/2006 120 118 420 5.840% No
44 01/01/2017 $ 14,986,828 12/19/2006 120 119 360 5.778% No
46 11/01/2011 $ 14,000,000 10/05/2006 60 57 IO 5.600% No
50 02/01/2017 $ 13,493,750 01/09/2007 120 120 360 5.560% No
53 01/01/2017 $ 12,139,283 12/29/2006 120 119 360 5.760% No
55 10/01/2016 $ 12,000,000 09/12/2006 120 116 360 5.910% No
56 11/01/2016 $ 11,500,000 10/12/2006 120 117 IO 5.820% No
57 07/01/2016 $ 11,000,000 06/05/2006 120 113 360 6.140% No
59 11/01/2016 $ 9,900,000 10/17/2006 120 117 360 5.700% No
60 12/01/2013 $ 9,600,000 11/30/2006 84 82 360 5.690% No
61 01/01/2017 $ 9,325,000 12/01/2006 120 119 360 5.580% No
62 12/01/2016 $ 9,250,000 11/21/2006 120 118 360 5.590% No
63 11/01/2011 $ 9,100,000 10/26/2006 60 57 IO 6.090% No
66 01/01/2017 $ 9,000,000 12/12/2006 120 119 360 5.680% No
67 12/01/2016 $ 8,984,042 11/22/2006 120 118 360 5.750% No
68 12/01/2015 $ 8,800,000 02/01/2007 106 106 360 5.530% No
69 05/01/2017 $ 8,800,000 10/16/2006 126 123 360 5.930% No
70 12/01/2016 $ 8,800,000 11/29/2006 120 118 360 5.590% No
74 01/01/2017 $ 8,489,109 12/11/2006 120 119 300 5.980% No
75 11/01/2016 $ 8,400,000 10/24/2006 120 117 360 6.030% No
76 12/01/2016 $ 8,300,000 11/07/2006 120 118 360 6.060% No
78 01/01/2017 $ 8,192,581 12/12/2006 120 119 360 5.660% No
79 12/01/2016 $ 8,154,078 11/03/2006 120 118 300 6.000% No
00 XXXX Xxxxxxxx Xxxxxxx 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx XX
86 MSMC 0000 Xxx Xxxxxxx & 00 Xxx 00xx Xxxxxx 0000 Xxx Xxxxxxx & 00 Xxx 00xx Xxxxxxxx XX
Street
88 MSMC Franklin Village 2600-2650 Xxxxxx School Road Wexford PA
93 MSMC Lakeridge Centre Xxxxxx 0000 Xxxxxx Xxxxxx Xxxx XX
94 MSMC Paulding Station 4795 and 4895 Xxxxx Xxx Xxxxx Xxxxx GA
Parkway
95 MSMC Mission Creek Apartments 0000 Xxxx Xxx Xxx Xxxxxx XX
00 XXXX Xxxxxxx Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx Xxxxx Xxxxxxx XX
100 MSMC Hampton Inn - Brookhollow 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX
103 MSMC Mission Medical Plaza 0000-0000 Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX
106 MSMC Ramada Inn - Phoenix 00000 Xxxxx 00xx Xxxxx Xxxxxxx XX
108 MSMC Orlando Retail Portfolio - Alafaya 000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX
Trail Shopping Center (D)
000 XXXX Xxxxxxx Retail Portfolio - Sand Lake 0000 Xxxx Xxxx Xxxx Xxxxxxx XX
Shoppes (D)
000 XXXX Xxxxxxx Xxx - Xxxxxxxxxx 0000 Xxxxxx Xxxx Xxxxxxxxxx XX
116 MSMC Staples Center at Northlake Village 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX
117 MSMC 0000 Xxxxx Xxxxxx Self Storage 0000 Xxxxx Xxxxxx Xxxxx XX
000 XXXX Xxxxxxx at Lone Tree 0000 Xxxx Xxxxxxx Xxxxx Xxxx Xxxx XX
000 XXXX Xxxxxxxx Apartments 1063 & 0000 X. Xxxxxxxx Xxxxxx Xxxxxxx XX
000 XXXX Xxxxxxxxx - Xxxxxxxxxxx 0000 X. Xxxx Xxxxxx Xxxxxxxxxxx XX
122 MSMC Best Western - Kansas City 0000 Xxxx Xxxxxx Xxxxxx Xxxx XX
123 MSMC The Calusa Shops 00000-00000 XX 00xx Xxxxxx Xxxxx XX
000 XXXX Xxxxxxxxxx Mountainside 00000 X. 000xx Xxxxxx Xxxxxxxxxx XX
000 XXXX Xxxxxxx Center 00000 Xxxxxxxxxxxx Xxxxxx; Xxxxxxx Xxxx XX
0000-0000 Xxxxxx Avenue
126 MSMC Ormond Business Center 0000-0000 Xxxx Xxxxxx Xxxxxx Xxxxx XX
000 XXXX Xxxxxxx Xxxx I 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX
84 11/01/2016 $ 7,500,000 10/16/2006 120 117 360 6.180% No
86 12/01/2016 $ 7,400,000 11/15/2006 120 118 360 5.760% No
88 01/08/2017 $ 6,750,000 12/27/2006 120 119 360 5.740% No
93 12/01/2016 $ 6,300,000 11/09/2006 120 118 360 5.940% No
94 01/01/2017 $ 6,230,000 12/13/2006 120 119 360 5.710% No
95 12/01/2016 $ 6,000,000 11/30/2006 120 118 300 5.700% No
96 02/01/2017 $ 6,000,000 01/31/2007 120 120 360 6.020% No
100 01/01/2017 $ 5,595,148 12/29/2006 120 119 360 5.830% No
103 01/01/2017 $ 5,500,000 12/04/2006 120 119 360 5.640% No
106 01/01/2012 $ 5,395,334 12/06/2006 60 59 360 5.840% No
108 12/01/2011 $ 3,594,095 11/30/2006 60 58 360 6.050% No
109 12/01/2011 $ 1,697,212 11/30/2006 60 58 360 6.050% No
115 11/01/2016 $ 5,016,581 10/31/2006 120 117 360 6.000% No
116 01/01/2017 $ 4,900,000 12/15/2006 120 119 360 5.580% No
117 12/01/2016 $ 4,820,000 11/21/2006 120 118 360 5.730% No
118 12/01/2016 $ 4,800,000 11/27/2006 120 118 360 6.190% No
119 12/01/2016 $ 4,751,985 11/06/2006 120 118 360 5.950% No
121 01/01/2017 $ 4,685,692 12/20/2006 120 119 360 5.600% No
122 11/01/2013 $ 4,637,448 10/30/2006 84 81 360 5.950% No
123 03/01/2012 $ 4,600,000 02/01/2007 60 60 360 6.110% No
124 02/01/2017 $ 4,600,000 01/12/2007 120 120 360 5.690% No
125 01/01/2017 $ 4,496,131 12/28/2006 120 119 360 5.860% No
126 11/01/2016 $ 4,488,331 10/06/2006 120 117 360 6.120% No
128 12/01/2016 $ 4,242,636 11/20/2006 120 118 360 5.840% No
129 MSMC Aberdeen Townhomes 0000 Xxxxx Xxxxx Xxxxxxxx XX
000 XXXX Xxxx Xxxx Mobile Home Park 000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxxxxx XX
131 MSMC Sunset Plaza 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx XX
132 MSMC Walgreens - Indianapolis 0000 Xxxxx Xxxxxxxxxxxx Xxxx Xxxxxxx XX
000 XXXX Xxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
000 XXXX Xxxxxx Xxxxxx 00-000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx XX
000 XXXX Xxxxxxxxx Xxxxxxxxx 00 Xxxxx Xxxxxxx Xxx Xxxxxxxxx XX
136 MSMC DePaul Xxxxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxx Xxxx Xxxxxxx XX
137 MSMC Fed Ex Building - Santa Xxxx 0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxx XX
138 MSMC Olympia Center 0000 Xxxxxxxx Xxx Xxxxxxx XX
000 XXXX Xxxxxxxx Xxxxxxxx Xxxx - Xxxxxxxxxx 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxxx XX
000 XXXX Xxxxx 4700 4616 South 0000 Xxxx Xxxx Xxxxxx Xxxx XX
000 XXXX Xxxxxxxxx - Xxxx Xxxxxx 0000 Xxxxxxx Xxxx Xxxxxx XX
143 MSMC 00-00/00 Xxxxxx Xxxxxx 00-00/00 Xxxxxx Xxxxxx Xxxxxxxx XX
144 MSMC Melbourne Xxxxxxx Retail 0000-0000 Xxxxxxx Xxxx Xxxxxxxxx XX
145 MSMC Yearling Green Apartments 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX
146 MSMC Research Forest Plaza 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX
147 MSMC Concord-Beacon Apartments 000-000 Xxxxxxx Xxxxxx & 00-00 Xxxxxxxxxx XX
Beacon Street
148 MSMC Eisenhower Crossing Strip Center 0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx XX
000 XXXX Xxxxx Xxxxx Mobile Home Park 000 Xxxxx 00xx Xxxxxx Xxxx XX
150 MSMC Prescott Medical Suites 000 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX
000 XXXX Xxxx Xxx Xxxxx 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxx XX
000 XXXX Xxxx Xxxxx Xxxxxxx - Xxxxxxxx 0000 & 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX
156 MSMC The Men's Wearhouse & Verizon 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX
158 MSMC Xxxxxxxx & Kyrene Retail Center 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX
000 XXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxxx Xxxxxx Xxxx XX
000 XXXX Xxxx Xxxxxxxx Xxxxxxxx II 00000 XX Xxxx Xxxxxxx Xxxx Xxxx XX
129 12/01/2016 $ 4,160,000 11/29/2006 120 118 360 5.600% No
130 01/01/2017 $ 4,150,000 12/07/2006 120 119 360 5.650% No
131 11/01/2016 $ 3,989,354 10/06/2006 120 117 360 6.010% No
132 11/01/2016 $ 3,939,238 10/26/2006 120 117 360 5.910% Yes
133 11/01/2016 $ 3,790,193 10/18/2006 120 117 360 6.140% No
134 12/01/2016 $ 3,725,000 11/30/2006 120 118 360 5.630% No
135 01/08/2017 $ 3,725,000 12/27/2006 120 119 360 5.740% No
136 10/01/2016 $ 3,587,183 09/15/2006 120 116 360 5.940% No
137 11/01/2016 $ 3,500,000 10/27/2006 120 117 360 5.920% Yes
138 12/01/2016 $ 3,440,945 11/22/2006 120 118 300 5.870% No
139 11/01/2011 $ 3,386,970 10/12/2006 60 57 300 6.260% No
140 09/09/2016 $ 3,320,000 09/01/2006 120 115 360 6.190% No
142 11/01/2016 $ 3,017,541 10/23/2006 120 117 300 5.870% No
143 02/01/2017 $ 3,000,000 02/01/2007 120 120 300 6.030% No
144 11/01/2016 $ 2,992,146 10/25/2006 120 117 360 6.080% No
145 12/01/2016 $ 2,565,570 11/07/2006 120 118 360 5.860% No
146 01/01/2017 $ 2,500,000 12/04/2006 120 119 360 6.100% No
147 12/01/2016 $ 2,395,927 11/30/2006 120 118 360 5.920% No
148 02/01/2017 $ 2,350,000 01/08/2007 120 120 360 5.720% No
149 01/01/2017 $ 2,335,000 12/27/2006 120 119 360 5.840% No
150 11/01/2011 $ 2,330,000 10/06/2006 60 57 360 5.890% No
152 11/01/2016 $ 2,293,821 10/25/2006 120 117 360 5.970% No
153 11/01/2016 $ 2,250,000 11/01/2006 120 117 360 5.970% No
156 11/01/2016 $ 2,150,000 10/11/2006 120 117 IO 6.030% No
158 01/01/2017 $ 2,040,000 12/18/2006 120 119 360 6.270% No
162 01/01/2017 $ 1,947,423 12/07/2006 120 119 300 5.820% No
167 11/01/2016 $ 1,496,302 10/27/2006 120 117 360 6.330% No
168 MSMC Xxxxxx Corners Shopping Center 0000 X. Xxxx Xxxxxx Xxxxxx XX
169 MSMC The Shoppes of Xxxxx Bay 0000 Xxxxxxx 00 Xxxxxxx XX
000 XXXX Xxxxxxx Xxxx Xxxxx - Xxxxxxx 0000 Xxxxx Xxxx Xxxxxxx XX
168 12/01/2016 $ 1,480,000 11/30/2006 120 118 360 6.150% No
169 12/01/2016 $ 1,118,173 11/29/2006 120 118 360 6.070% No
170 01/01/2017 $ 1,099,049 12/20/2006 120 119 360 5.840% No
SCHEDULE III
PCFII MORTGAGE LOAN SCHEDULE
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE
------------------------------------------------------------------------------------------------------------------------------------
10 PCF II Residence Inn Tudor Wharf 00-00 Xxxxxxx Xxxxx Xxxxxx Xxxxxx XX
24 PCF II Southlake Corners 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX
49 PCF II 000 Xxxxx Xxxx 000 Xxxxx Xxxx Xxxxx Xxxxxxxxx XX
00 XXX XX Xxxx Xxxxx Xxxxxxx Apartments 24 Sandalwood Drive Xxxxx Xxxx Creek Hundred DE
58 PCF II Prairie Packaging Facility 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxx XX
64 PCF II Euram Building 00 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX
71 PCF II 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx XX
73 PCF II Cedar Tree Apartments 0000 Xxxxx Xxxx Xxxxx Brandywine Hundred DE
85 PCF II Allstate Office Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX
87 PCF II Lakeshore Village Apartments 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX
91 PCF II 0000 Xxxxx Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxx Xx. Xxxxxxxxxx XX
102 PCF II 0000 Xxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx Xxxxxx XX
000 XXX XX Xxxxxxxx Xxxxxx 000-000 & 000-000 Xxxxxxx Xxx Xxxxxxxx XX
113 PCF II Supply One Warehouse 00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx XX
127 PCF II Green Country Distribution 0000 Xxxx 00xx Xxxxxx Xxxxx XX
141 PCF II 10620 & 00000 Xxxxxxxx Xxxx Xxxxxxxxx 00000 & 00000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX
151 PCF II Union Square Shopping Center 0000-0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX
154 PCF II 0000 Xxxx Xxxx 0000 Xxxx Xxxx Xxxxxxxxxx Xxxxxxxx XX
157 PCF II West Lodi Self Storage 0000 Xxxx Xxxx Xxxxxx Xxxx XX
159 PCF II 4110-4120 Xxxxxxxxx Retail Center 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxx XX
160 PCF II 000 Xxxxxxxxx Xxxx 000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX
CUT-OFF ORIGINAL REMAINING ORIGINAL
MORTGAGE MATURITY DATE TERM TO TERM TO AMORT. MORTGAGE ARD
LOAN NO. DATE BALANCE NOTE DATE MATURITY MATURITY TERM(9) RATE LOAN
--------------------------------------------------------------------------------------------
10 01/01/2014 $46,260,000 12/15/2006 84 83 IO 5.935% Yes
24 01/01/2012 $20,625,000 12/29/2006 60 59 IO 5.540% No
49 01/01/2017 $13,971,230 12/18/2006 120 119 240 5.800% No
51 01/01/2017 $13,387,505 12/14/2006 120 119 360 5.540% No
58 02/01/2017 $10,400,000 01/10/2007 120 120 IO 5.780% Yes
64 01/01/2017 $ 9,000,000 12/21/2006 120 119 360 5.490% No
71 01/01/2017 $ 8,800,000 12/28/2006 120 119 IO 5.910% Yes
73 01/01/2017 $ 8,591,981 12/14/2006 120 119 360 5.540% No
85 02/01/2017 $ 7,500,000 01/08/2007 120 120 300 5.710% No
87 01/01/2017 $ 6,794,334 12/05/2006 120 119 360 5.980% No
91 01/01/2017 $ 6,500,000 12/08/2006 120 119 420 5.940% Yes
102 01/01/2017 $ 5,550,000 12/20/2006 120 119 360 5.890% Yes
107 01/01/2017 $ 5,320,000 12/08/2006 120 119 360 5.900% No
113 01/01/2017 $ 5,097,423 12/21/2006 120 119 420 6.160% No
127 12/01/2016 $ 4,300,000 11/30/2006 120 118 360 5.930% No
141 06/04/2017 $ 3,050,000 11/21/2006 126 124 360 5.990% Yes
151 01/01/2017 $ 2,298,851 12/08/2006 120 119 420 6.190% No
154 12/01/2016 $ 2,226,333 11/14/2006 120 118 360 6.040% No
157 01/01/2017 $ 2,148,161 12/29/2006 120 119 360 5.880% No
159 01/01/2017 $ 1,998,303 12/21/2006 120 119 360 5.910% No
160 01/01/2017 $ 1,998,303 12/07/2006 120 119 360 5.910% No
000 XXX XX 00000 Xxxxxx Xxxxx 00000 Xxxxxx Xxxxx Xxxx XX
164 PCF II 0000 Xxxxxxxxxxxxx Xxxxxxx 0000 Xxxxxxxxxxxxx Xxxxxxx Xxxxxxxxx XX
165 PCF II Morgan Manor 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX
166 PCF II 0000 0xx Xxxxxx Xxxxx 0000 0xx Xxxxxx Xxxxx Xxxxxxxxxxxx Xxxxx XX
171 PCF II 0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX
161 01/01/2017 $ 1,997,467 12/18/2006 120 119 300 6.040% No
164 01/01/2017 $ 1,600,000 12/08/2006 120 119 IO 5.900% No
165 01/01/2017 $ 1,598,695 12/29/2006 120 119 360 6.060% No
166 01/01/2017 $ 1,548,808 12/12/2006 120 119 360 6.280% No
171 12/01/2016 $ 639,118 11/28/2006 120 118 360 6.680% No
SCHEDULE IV
[RESERVED]
SCHEDULE V
[Reserved]
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
PCFII - NONE
MSMC - NONE
LASALLE - NONE
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
PCFII - NONE
CMSA
LOAN ID SELLER PROPERTY NAME CURRENT BALANCE
--------------------------------------------------------------------
5 MSMC Galleria at Pittsburgh Xxxxx $133,000,000.00
0 XXXX Xxxxxxxx Xxxxxxxxx Xxxx Center $ 69,600,000.00
0 XXXX Xxxxxx Xxxxxxxxx & Towers $ 54,400,000.00
00 XXXX Xxxx Xxxxx Xxxxx $ 37,950,000.00
106 MSMC Ramada Inn - Phoenix $ 5,395,333.65
120 LaSalle 0000 Xxxxxxxxxxx Xxxx $ 4,721,032.01
000 XXXX Xxxx Xxxxxxx - Xxxxxx Xxxx $ 4,637,448.41
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(a)
PCFII - None
MORTGAGE
MORTGAGE LOAN CUT-OFF DATE
LOAN NO. SELLER PROPERTY NAME BALANCE
---------------------------------------------------------------------------------------------
00 XxXxxxx Xxxx Xxx- Xxxxxxxx $11,738,758
00 XxXxxxx Xxxx Xxx- Xxxxxx XX $ 6,144,063
00 XxXxxxx Xxxx Xxx - Xxxxxxxx $ 3,891,740
21 LaSalle Jade Pig- Kalamazoo D&W $ 3,201,307
30 MSMC Pennsylvania Retail Portfolio - Weis Xxxx Lake $ 6,482,635
00 XXXX Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx - Xxxxxxx Xxxx $ 3,096,482
32 MSMC Pennsylvania Retail Portfolio - CVS Hockersville $ 2,856,755
33 MSMC Pennsylvania Retail Portfolio - CVS Edgewood $ 1,962,770
34 MSMC Pennsylvania Retail Portfolio - CVS Richland $ 1,957,776
36 MSMC PA-MD Retail Portfolio - Staples Susquehanna $ 3,915,552
37 MSMC PA-MD Retail Portfolio - CVS Johnnycake $ 3,875,597
38 MSMC PA-MD Retail Portfolio - CVS Xxxxxx $ 2,547,106
39 MSMC PA-MD Retail Portfolio - CVS Hollins Ferry $ 2,237,458
40 MSMC PA-MD Retail Portfolio - CVS Mt. Joy $ 2,192,509
41 MSMC PA-MD Retail Portfolio - Hazleton Plaza $ 1,038,820
000 XXXX Xxxxxxx Retail Portfolio - Alafaya Trail Shopping Center $ 3,594,095
000 XXXX Xxxxxxx Retail Portfolio - Sand Lake Shoppes $ 1,697,212
MORTGAGE
LOAN NO. BORROWER NAME SPONSOR
------------------------------------------------------------------------------------------------------
18 Jade Pig Ventures-Rockford, L.L.C. Xxxxx X. XxXxxxx
19 Jade Pig Ventures-Breton Xxxxxxx, L.L.C. Xxxxx X. XxXxxxx
20 Jade Pig Ventures-Xxxxxxxx, L.L.C. Xxxxx X. XxXxxxx
21 Jade Pig Ventures-Parkview, L.L.C. Xxxxx X. XxXxxxx
30 W.B.H.V. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
31 S.L.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
32 C.H.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
33 C.E.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
34 C.C.Y. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
36 S.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
37 Johnnycake Associates III, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
38 C.C.M. Associates II, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
39 C.L. Associates II, LLC Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
40 C.M.J. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
41 J.R.H. Associates L.P. Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxx
108 K&B Alafaya Associates LLC Xxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx
109 Sand Lake Shoppes Family Limited Partnership Xxxxxx Xxxxxxx; Xxxxxx Xxxxxxx; Xxxx Xxxxxxx
SCHEDULE IX
EARN-OUT RESERVES
LaSalle - None
ESCROWED
MORTGAGE HOLDBACK OR LETTER OUTSIDE
MORTGAGE LOAN CUT-OFF DATE OF CREDIT INITIAL DATE FOR PARTIAL PREPAYMENT
LOAN NO. SELLER PROPERTY NAME BALANCE AMOUNT RELEASE PREMIUM PROVISIONS
----------------------------------------------------------------------------------------------------------------------
100 MSMC Hampton Inn - Brookhollow $5,595,148 $280,000 10/1/2007 Greater of 1% or
Xxxxx Xxxxxxxxxxx
000 XXX XX Xxxxxxxx Xxxxxx $5,320,000 $200,000 LOC 2/1/2009 Greater of 1% or
Xxxxx Xxxxxxxxxxx
000 XXX XX 00000 & 00000 Xxxxxxxx Xxxx $3,050,000 $30,070 12/1/2007 Greater of 1% or
Boulevard Yield Maintenance
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
MORTGAGE MORTGAGE
PROPERTY NO. LOAN SELLER PROPERTY NAME
------------------------------------------------------
13 MSMC Casa Xxxxx Plaza
16 MSMC Crossing Place Apartments
PCFII - NONE
LASALLE - NONE
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE END
OF A COLLECTION PERIOD
MORTGAGE MORTGAGE DUE DEBT SERVICE PAYMENT GRACE
PROPERTY NO. LOAN SELLER PROPERTY NAME DATE PERIOD TO IMPOSE LATE CHARGE
--------------------------------------------------------------------------------------------------------
1 MSMC One Seaport Plaza 9 2
4 MSMC 000 Xxxxxxxxx Xxxxxx 11 10
7 MSMC Xxxxxxxx Xxxx 0 0
00 XXXX Xxxx Xxx Retail 9 0
43 LaSalle NNN Westpoint I 1 10
80 LaSalle Westchester Market 1 10
97 LaSalle Arlington Towne Centre 1 10
000 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxxx, XX 1 15
000 XxXxxxx Xxxxxxx Xxxxx Xxxxxxx 1 10
116 MSMC Staples Center at Northlake Village 1 15
133 MSMC Starmount Shopping Center 1 15
140 MSMC Plaza 4700 9 0
141 PCF II 10620 & 00000 Xxxxxxxx Xxxx Xxxxxxxxx 4 15
SCHEDULE XII
LIST OF MORTGAGE LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT
WHOSE SERVICING FEES ACCRUE ON A 30/360 BASIS
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME
-----------------------------------------------------------------------------------
1 MSMC One Seaport Plaza
2 MSMC 000 Xxxxxxx Xxxxxx
3 MSMC RREEF Portfolio - Xxxxxx'x Crossing
3 MSMC RREEF Portfolio - Lionsgate
3 MSMC RREEF Portfolio - University Heights
3 MSMC RREEF Portfolio - Carlyle Station
3 MSMC RREEF Portfolio - XxXxxx Farms
3 MSMC RREEF Portfolio - The Xxxx
3 MSMC RREEF Portfolio - Fox Run
3 MSMC RREEF Portfolio - Xxxxxxx Station
4 MSMC 000 Xxxxxxxxx Xxxxxx
5 MSMC Galleria at Pittsburgh Xxxxx
6 MSMC 000 X'Xxxxxx Xxxxx
7 MSMC Deptford Mall
8 MSMC Marriott Xxxxxxxxx Xxxx Xxxxxx
0 XXXX Xxxxxx Xxxxxxxxx & Towers
10 PCF II Residence Inn Tudor Wharf
12 MSMC The Greens at Green Valley
13 MSMC Casa Xxxxx Xxxxx
00 XXXX Xxxxxx - Xxxx Xxxx
15 MSMC Arrowhead Fountains
15 MSMC Xxxxxxx Office Building
15 MSMC Sheridan Center
16 MSMC Crossing Place Apartments
17 LaSalle 600 West Xxxxxx
00 XxXxxxx Xxxx Xxx- Xxxxxxxx
00 XxXxxxx Xxxx Xxx- Xxxxxx XX
00 XxXxxxx Xxxx Xxx - Xxxxxxxx
21 LaSalle Jade Pig- Kalamazoo D&W
22 LaSalle CoBank Building
23 MSMC Platinum Portfolio - Eastpointe Shopping Center
23 MSMC Platinum Portfolio - Xxxxxxx Xxxxx Building
23 MSMC Platinum Portfolio - Platinum Plaza / Centra Bank Building
23 MSMC Platinum Portfolio - Eastpointe Business Park
23 MSMC Platinum Portfolio - Suncrest Corporate Center
25 LaSalle 000 Xxxxxx Xxxxxx Xxxx
00 XXXX Xxxx Xxx Retail
00 XXXX Xxxxxxxxx Xxxx Xxxxx
28 MSMC Regal Cinema - Lincolnshire
00 XxXxxxx Xxxxx Xxxxx
00 XXXX Xxxxxxxxxxxx Retail Portfolio - Weis Xxxx Lake
31 MSMC Pennsylvania Retail Portfolio - Staples York
32 MSMC Pennsylvania Retail Portfolio - CVS Xxxxxxxxxxxx
00 XXXX Xxxxxxxxxxxx Retail Portfolio - CVS Edgewood
34 MSMC Pennsylvania Retail Portfolio - CVS Richland
35 MSMC 000-000 X. Xxxxxxx Xxxx
36 MSMC PA-MD Retail Portfolio - Staples Susquehanna
37 MSMC PA-MD Retail Portfolio - CVS Johnnycake
38 MSMC PA-MD Retail Portfolio - CVS Xxxxxx
39 MSMC PA-MD Retail Portfolio - CVS Hollins Ferry
40 MSMC PA-MD Retail Portfolio - CVS Mt. Joy
41 MSMC PA-MD Retail Portfolio - Hazleton Plaza
42 LaSalle Orland Park Crossing
43 LaSalle NNN Westpoint I
44 MSMC Eureka Pointe Shopping Center
45 LaSalle Foothill Ranch
00 XXXX Xxxxxxxx Xxxx xx Xx. Xxxxxxxxx
00 XxXxxxx Xxxxxxxx Xxxx Apts
48 LaSalle Market Place Properties
49 PCF II 000 Xxxxx Xxxx
50 MSMC Sunrise Apartments - Richmond
51 PCF II Xxxx Eagle Village Apartments
52 LaSalle Flying Flags RV Park
53 MSMC Hilton Garden Inn - The Woodlands
00 XxXxxxx Xxxx Xxxxxx Plaza
55 MSMC Shasta Crossroads
56 MSMC Fox Hill Apartments
57 MSMC Xxxxx Town Center
58 PCF II Prairie Packaging Facility
59 MSMC 000 Xxxxxxxxxx Xxxxxx
60 MSMC Madison Apartments
61 MSMC Xxxxxxxx Xxxxx Xxxxx
00 XXXX 00 Xxxx Xxxxx
63 MSMC 000 Xxxxx Xxxxxx
64 PCF II Euram Building
65 LaSalle Aspen Square
66 MSMC Hayden Place
67 MSMC PetSmart - East Hanover
68 MSMC Easton Apartments
69 MSMC Maple Valley Commons
70 MSMC 0000-0000 Xxxxxxx Xxxxxxxxx
71 PCF II 000 Xxxxxxxx Xxxxx
72 LaSalle Woodlake Commons Shopping Center
73 PCF II Cedar Tree Apartments
74 MSMC Carnegie Hotel Resort & Spa
75 MSMC Southbridge Plaza
76 MSMC Xxxxxxx Terrace
77 LaSalle Northwoods II
78 MSMC Big Springs Village
79 MSMC Country Inn & Suites - Atlanta Airport
80 LaSalle Westchester Market
81 LaSalle Sand Creek Business Center
82 LaSalle Chesapeake Office
83 LaSalle Hampton Inn - Cranberry Township
84 MSMC Lakeside Village
86 MSMC 0000 Xxx Xxxxxxx & 00 Xxx 00xx Xxxxxx
87 PCF II Lakeshore Village Apartments
88 MSMC Franklin Village
89 LaSalle Hunter Plaza
90 LaSalle Holiday Inn Express - Orangeburg
91 PCF II 0000 Xxxxx Xxxxxxx Xxxxxxx
92 LaSalle Independence Plaza
93 MSMC Lakeridge Centre Office
94 MSMC Paulding Station
95 MSMC Mission Creek Apartments
00 XXXX Xxxxxxx Xxxxxxxx Xxxx
97 LaSalle Arlington Towne Centre
00 XxXxxxx Xxxxx Xxxxx
99 LaSalle 000 Xxxxx Xxxxx North
100 MSMC Hampton Inn - Brookhollow
000 XxXxxxx XX - Xxxx Xxxxxxx Xxxxxxxx, XX
102 PCF II 0000 Xxxx Xxxxx Xxxxxx
103 MSMC Mission Xxxxxxx Xxxxx
000 XxXxxxx Xxxxxxxx
000 XxXxxxx Xxxxxx Xxxxxx Colony
106 MSMC Ramada Inn - Phoenix
107 PCF II Heritage Pointe
108 MSMC Orlando Retail Portfolio - Alafaya Trail Shopping Center
109 MSMC Orlando Retail Portfolio - Sand Lake Shoppes
000 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxxx, XX
111 LaSalle Euronet Building
112 LaSalle Country Brook Village
113 PCF II Supply One Warehouse
000 XxXxxxx Xxxxxxx Xxx - Xxxxxx, XX
115 MSMC Hampton Inn - Fultondale
116 MSMC Staples Center at Northlake Village
117 MSMC 0000 Xxxxx Xxxxxx Self Storage
000 XXXX Xxxxxxx at Lone Tree
000 XXXX Xxxxxxxx Apartments
120 LaSalle 0000 Xxxxxxxxxxx Xxxx
121 MSMC Walgreens - Ponchatoula
122 MSMC Best Western - Kansas City
123 MSMC The Calusa Shops
124 MSMC Scottsdale Mountainside
000 XXXX Xxxxxxx Center
126 MSMC Ormond Business Center
127 PCF II Green Country Distribution
000 XXXX Xxxxxxx Xxxx I
129 MSMC Aberdeen Townhomes
000 XXXX Xxxx Xxxx Mobile Home Park
131 MSMC Sunset Plaza
132 MSMC Walgreens - Indianapolis
000 XXXX Xxxxxxxxx Xxxxxxxx Xxxxxx
000 XXXX Xxxxxx Xxxxxx
135 MSMC Cranberry Crossings
136 MSMC DePaul Medical Office Building
137 MSMC Fed Ex Building - Santa Xxxx
138 MSMC Olympia Center
139 MSMC Suburban Extended Stay - Louisville
000 XXXX Xxxxx 0000
000 XXX XX 00000 & 10710 Southern Xxxx Xxxxxxxxx
000 XXXX Xxxxxxxxx - Xxxx Xxxxxx
143 MSMC 00-00/00 Xxxxxx Xxxxxx
000 XXXX Xxxxxxxxx Xxxxxxx Retail
145 MSMC Yearling Green Apartments
146 MSMC Research Xxxxxx Xxxxx
000 XXXX Xxxxxxx-Xxxxxx Apartments
148 MSMC Eisenhower Crossing Strip Center
149 MSMC Royal Palms Mobile Home Park
150 MSMC Prescott Medical Suites
151 PCF II Union Square Shopping Center
000 XXXX Xxxx Xxx Xxxxx
153 MSMC Home Depot Outlots - Plymouth
154 PCF II 0000 Xxxx Xxxx
000 XxXxxxx Xxx Xxxxx Retail
157 PCF II West Lodi Self Storage
158 MSMC Chandler & Kyrene Retail Center
159 PCF II 4110-4120 Xxxxxxxxx Retail Center
160 PCF II 000 Xxxxxxxxx Xxxx
161 PCF II 00000 Xxxxxx Xxxxx
000 XXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxx
163 LaSalle DoMar Properties
164 PCF II 0000 Xxxxxxxxxxxxx Xxxxxxx
165 PCF II Morgan Manor
166 PCF II 0000 0xx Xxxxxx Xxxxx
000 XXXX Xxxx Xxxxxxxx Xxxxxxxx II
168 MSMC Xxxxxx Corners Shopping Center
169 MSMC The Shoppes of Xxxxx Bay
170 MSMC Advance Auto Parts - Houston
171 PCF II 0000 Xxxxxxxxx Xxxxxxxxx
SCHEDULE XIII
Class A-AB Planned Principal Balance
DISTRIBUTION
DATE BALANCE
---- -------
03/12/2007 $59,300,000.00
04/12/2007 $59,300,000.00
05/12/2007 $59,300,000.00
06/12/2007 $59,300,000.00
07/12/2007 $59,300,000.00
08/12/2007 $59,300,000.00
09/12/2007 $59,300,000.00
10/12/2007 $59,300,000.00
11/12/2007 $59,300,000.00
12/12/2007 $59,300,000.00
01/12/2008 $59,300,000.00
02/12/2008 $59,300,000.00
03/12/2008 $59,300,000.00
04/12/2008 $59,300,000.00
05/12/2008 $59,300,000.00
06/12/2008 $59,300,000.00
07/12/2008 $59,300,000.00
08/12/2008 $59,300,000.00
09/12/2008 $59,300,000.00
10/12/2008 $59,300,000.00
11/12/2008 $59,300,000.00
12/12/2008 $59,300,000.00
01/12/2009 $59,300,000.00
02/12/2009 $59,300,000.00
03/12/2009 $59,300,000.00
04/12/2009 $59,300,000.00
05/12/2009 $59,300,000.00
06/12/2009 $59,300,000.00
07/12/2009 $59,300,000.00
08/12/2009 $59,300,000.00
09/12/2009 $59,300,000.00
10/12/2009 $59,300,000.00
11/12/2009 $59,300,000.00
12/12/2009 $59,300,000.00
01/12/2010 $59,300,000.00
02/12/2010 $59,300,000.00
03/12/2010 $59,300,000.00
04/12/2010 $59,300,000.00
05/12/2010 $59,300,000.00
06/12/2010 $59,300,000.00
07/12/2010 $59,300,000.00
08/12/2010 $59,300,000.00
09/12/2010 $59,300,000.00
10/12/2010 $59,300,000.00
11/12/2010 $59,300,000.00
12/12/2010 $59,300,000.00
01/12/2011 $59,300,000.00
02/12/2011 $59,300,000.00
03/12/2011 $59,300,000.00
04/12/2011 $59,300,000.00
05/12/2011 $59,300,000.00
06/12/2011 $59,300,000.00
07/12/2011 $59,300,000.00
08/12/2011 $59,300,000.00
09/12/2011 $59,300,000.00
10/12/2011 $59,300,000.00
11/12/2011 $59,300,000.00
12/12/2011 $59,300,000.00
01/12/2012 $59,300,000.00
02/12/2012 $59,300,000.00
03/12/2012 $59,231,508.04
04/12/2012 $58,261,000.00
05/12/2012 $57,164,000.00
06/12/2012 $56,184,000.00
07/12/2012 $55,077,000.00
08/12/2012 $54,086,000.00
09/12/2012 $53,090,000.00
10/12/2012 $51,968,000.00
11/12/2012 $50,961,000.00
12/12/2012 $49,828,000.00
01/12/2013 $48,900,000.00
02/12/2013 $47,877,000.00
03/12/2013 $46,488,000.00
04/12/2013 $45,453,000.00
05/12/2013 $44,293,000.00
06/12/2013 $43,248,000.00
07/12/2013 $42,077,000.00
08/12/2013 $41,020,000.00
09/12/2013 $39,958,000.00
10/12/2013 $38,771,000.00
11/12/2013 $37,700,000.00
12/12/2013 $36,600,000.00
01/12/2014 $35,579,000.00
02/12/2014 $34,506,000.00
03/12/2014 $33,079,000.00
04/12/2014 $31,995,000.00
05/12/2014 $30,789,000.00
06/12/2014 $29,693,000.00
07/12/2014 $28,476,000.00
08/12/2014 $27,368,000.00
09/12/2014 $26,255,000.00
10/12/2014 $25,021,000.00
11/12/2014 $23,896,000.00
12/12/2014 $22,650,000.00
01/12/2015 $21,513,000.00
02/12/2015 $20,371,000.00
03/12/2015 $18,879,000.00
04/12/2015 $17,723,000.00
05/12/2015 $16,447,000.00
06/12/2015 $15,279,000.00
07/12/2015 $13,991,000.00
08/12/2015 $12,811,000.00
09/12/2015 $11,624,000.00
10/12/2015 $10,319,000.00
11/12/2015 $9,119,000.00
12/12/2015 $7,802,000.00
01/12/2016 $6,590,000.00
02/12/2016 $5,372,000.00
03/12/2016 $3,923,000.00
04/12/2016 $2,692,000.00
05/12/2016 $1,343,000.00
06/12/2016 $98,000.00
07/12/2016 $0.00
SCHEDULE XIV
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:
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Paying Agent
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies Paying Agent
and procedures are instituted to monitor the third party's performance and Master Servicer
compliance with such servicing activities. Special Servicer
Primary Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for N/A
the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Paying Agent
participating in the servicing function throughout the reporting period in the Custodian
amount of coverage required by and otherwise in accordance with the terms of the Master Servicer
transaction agreements. Special Servicer
Primary Servicer
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) 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
agreements. Primary Servicer
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor Paying Agent
are made only by authorized personnel.
1122(d)(2)(iii) 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
made, reviewed and approved as specified in the transaction agreements. Trustee
1122(d)(2)(iv) 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
transaction agreements. Primary Servicer
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Paying Agent
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a foreign Special Servicer
financial institution means a foreign financial institution that meets the Primary Servicer
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
Paying Agent
Primary Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities Paying Agent
related bank accounts, including custodial accounts and related bank clearing Master Servicer
accounts. These reconciliations are (A) mathematically accurate; (B) prepared Special Servicer
within 30 calendar days after the bank statement cutoff date, or such other Primary Servicer
number of days specified in the transaction agreements; (C) reviewed and approved
by someone other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved within
90 calendar days of their original identification, or such other number of days
specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Paying Agent
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of mortgage
loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Paying Agent
timeframes, distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Paying Agent
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Paying Agent
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Custodian
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
Primary Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Custodian
transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and Custodian
approved in accordance with any conditions or requirements in the transaction Master Servicer
agreements. Special Servicer
Primary Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the Master Servicer
related mortgage loan documents are posted to the Servicer's obligor records Special Servicer
maintained no more than two business days after receipt, or such other number of Primary Servicer
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
loan documents.
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
records with respect to an obligor's unpaid principal balance. Primary Servicer
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans (e.g., Master Servicer
loan modifications or re-agings) are made, reviewed and approved by authorized Special Servicer
personnel in accordance with the transaction agreements and related pool asset Primary Servicer
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and Master Servicer
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are Special Servicer
initiated, conducted and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period Primary Servicer
specified in the transaction agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable Master Servicer
rates are computed based on the related mortgage loan documents. Primary Servicer
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) Master Servicer
such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on the Primary Servicer
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of Master Servicer
an obligor are paid from the servicer's funds and not charged to the obligor, Primary Servicer
unless the late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to Master Servicer
the obligor's records maintained by the servicer, or such other number of days Primary Servicer
specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded Master Servicer
in accordance with the transaction agreements. Primary Servicer
RELEVANT SERVICING CRITERIA APPLICABLE PARTY(IES)
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through N/A
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction
agreements.
SCHEDULE XV
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 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, the 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, the 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-HQ11 Pooling and Servicing Agreement, each of the Paying Agent,
the Trustee, the Master Servicer, the 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 o Master Servicer
Performance Information:
o Paying Agent
o Item 1121(a)(13) of
Regulation AB
Item 1B: Distribution and Pool o Paying Agent
Performance Information:
o Depositor
o Item 1121 (a)(14) of
Regulation AB
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB o Special Servicer (as to
itself)
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
o Each Seller as sponsor (as
defined in Regulation AB)
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 o Depositor
Proceeds
Item 4: Defaults Upon Senior o Paying Agent
Securities
Item 5: Submission of Matters to a o Paying Agent
Vote of Security Holders
o Trustee
Item 6: Significant Obligors of Pool o Depositor
Assets
o Sponsor
o Applicable Seller
o Master Servicer
o Primary Servicer (as to loans
serviced by it)
Item 7: Significant Enhancement o Depositor
Provider Information
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 Special Servicer
o Primary Servicer
SCHEDULE XVI
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 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-HQ11 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 o Paying Agent
o Any other party responsible
for disclosure items on Form
8-K
Item 15: Exhibits, Financial o Paying Agent
Statement Schedules
o Depositor
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to
itself)
Disclosure per Item 1117 of o Paying Agent (as to itself)
Regulation AB
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
o Each Seller as sponsor (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 Master Servicer (as to itself)
Disclosure per Item 1119 of
Regulation AB o Special Servicer (as to
itself)
o Paying Agent (as to itself)
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 Each 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 Special Servicer
o Primary Servicer
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and
1115(b) of Regulation AB o Master Servicer
o Special Servicer
SCHEDULE XVII
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 knowledge of such information (other than information as
to itself). Each of the Paying Agent, the Trustee, the Master Servicer, the
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, the 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-HQ11 Pooling and Servicing Agreement, each of the Paying Agent, the
Trustee, the Master Servicer, the 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 o Trustee/Paying Agent/Master
Definitive Agreement Servicer/Depositor/Special
Servicer as to the Trust
Item 1.02- Termination of a Material o Trustee/Paying Agent/Master
Definitive Agreement Servicer/Depositor/Special
Servicer as to the Trust
Item 1.03- Bankruptcy or Receivership o Depositor
Item 2.04- Triggering Events that o Master Servicer
Accelerate or Increase a Direct
Financial Obligation or an Obligation o Paying Agent
under an Off-Balance Sheet
Arrangement
Item 3.03- Material Modification to o Paying Agent
Rights of Security Holders
Item 5.03- Amendments of Articles of o Depositor
Incorporation or Bylaws; Change of
Fiscal Year
Item 6.01- ABS Informational and o Depositor
Computational Material
Item 6.02- Change of Servicer or o Master Servicer
Trustee
o Special Servicer
o Primary Servicer
o Trustee
o Paying Agent
o Depositor
Item 6.03- Change in Credit o Depositor
Enhancement or External Support
o Paying Agent
Item 6.04- Failure to Make a Required o Paying Agent
Distribution
Item 6.05- Securities Act Updating o Depositor
Disclosure
Item 7.01- Regulation FD Disclosure o Depositor
Item 8.01 o Depositor
Item 9.01 o Depositor
o Master Servicer
o Special Servicer
o Paying Agent
o Primary Servicer
SCHEDULE XVIII
Additional Disclosure Notification
**SEND VIA FAX TO [___] AND VIA EMAIL TO [___]@[__].COM AND VIA OVERNIGHT MAIL
TO THE ADDRESSES IMMEDIATELY BELOW**
LaSalle Bank National Association, as Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Corporate Trust Services- [DEAL NAME]--SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc., as Depositor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Friend
Xxxxxxx Xxxxxx
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 [______][__], 2007, 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:
SCHEDULE XIX
SELLER-
SUBSERVICER
NONE