Exhibit 4.1
Pooling and Servicing Agreement
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
NCB, FSB,
as NCB Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ16
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..................................................
Section 1.2 Calculations Respecting Mortgage Loans.......................
Section 1.3 Calculations Respecting Accrued Interest.....................
Section 1.4 Interpretation...............................................
Section 1.5 ARD Loans....................................................
Section 1.6 Certain Matters with Respect to the Serviced Loan Groups.....
Section 1.7 Certain Matters Relating to the Non-Trust Serviced Pari
Passu Loans.................................................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................
Section 2.2 Acceptance by Trustee........................................
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and
Warranties..................................................
Section 2.4 Representations and Warranties...............................
Section 2.5 Conveyance of Interests......................................
Section 2.6 Certain Matters Relating to Non-Trust Serviced Pari Passu
Loans.......................................................
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................
Section 3.2 Registration.................................................
Section 3.3 Transfer and Exchange of Certificates........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 3.5 Persons Deemed Owners........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses....
Section 3.7 Book-Entry Certificates......................................
Section 3.8 Notices to Clearing Agency...................................
Section 3.9 Definitive Certificates......................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicers.........................
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced Pari
Passu Loans.................................................
Section 4.2 Servicing Advances...........................................
Section 4.3 Advances by the Trustee......................................
Section 4.4 Evidence of Nonrecoverability................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan.............................
Section 4.6 Reimbursement of Advances and Advance Interest...............
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections..................................................
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Account....................................
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Accounts..................
Section 5.4 Paying Agent Reports.........................................
Section 5.5 Paying Agent Tax Reports.....................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................
Section 6.2 REMIC I......................................................
Section 6.3 REMIC II.....................................................
Section 6.4 [Reserved]...................................................
Section 6.5 REMIC III....................................................
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................
Section 6.8 Adjustment of Servicing Fees.................................
Section 6.9 Appraisal Reductions.........................................
Section 6.10 Compliance with Withholding Requirements.....................
Section 6.11 Prepayment Premiums and Yield Maintenance Charges............
Section 6.12 Other Distributions..........................................
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE REGISTRAR, AND THE
PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent...................
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent...
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.................
Section 7.4 The Trustee and the Paying Agent May Own Certificates........
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent.......................................................
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent...
Section 7.7 Successor Trustee or Paying Agent............................
Section 7.8 Merger or Consolidation of Trustee or Paying Agent...........
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................
Section 7.10 Authenticating Agents........................................
Section 7.11 Indemnification of the Trustee and the Paying Agent..........
Section 7.12 Fees and Expenses of Trustee and the Paying Agent............
Section 7.13 Collection of Moneys.........................................
Section 7.14 Trustee to Act; Appointment of Successor.....................
Section 7.15 Notification to Holders......................................
Section 7.16 Representations and Warranties of the Trustee and Paying
Agent.......................................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent..............
Section 7.18 Appointment of a Fiscal Agent................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers..........................
Section 8.3 Master Servicers' General Power and Duties...................
Section 8.4 Primary Servicing and Sub-Servicing..........................
Section 8.5 Servicers May Own Certificates...............................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes...
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause.......................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of
the Certificateholders......................................
Section 8.10 Servicing Compensation.......................................
Section 8.11 Master Servicer Reports; Account Statements..................
Section 8.12 [Reserved]...................................................
Section 8.13 [Reserved]...................................................
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer.............................................
Section 8.16 Rule 144A Information........................................
Section 8.17 Inspections..................................................
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents....................................................
Section 8.19 Specially Serviced Mortgage Loans............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 8.21 Merger or Consolidation......................................
Section 8.22 Resignation of the Master Servicer...........................
Section 8.23 Assignment or Delegation of Duties by a Master Servicer......
Section 8.24 Limitation on Liability of the Master Servicers and Others...
Section 8.25 Indemnification; Third-Party Claims..........................
Section 8.26 [Reserved]...................................................
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 8.28 Termination..................................................
Section 8.29 Procedure Upon Termination...................................
Section 8.30 Notification to Certificateholders...........................
Section 8.31 Swap Transactions............................................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE
SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers..............................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicers....................................
Section 9.3 Sub-Servicers................................................
Section 9.4 Special Servicers' General Powers and Duties.................
Section 9.5 "Due-On-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses...........................
Section 9.6 Release of Mortgage Files....................................
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee........................
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers...................................................
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................
Section 9.10 Presentment of Claims and Collection of Proceeds.............
Section 9.11 Compensation to the Special Servicers........................
Section 9.12 Realization Upon Defaulted Mortgage Loans....................
Section 9.13 Foreclosure..................................................
Section 9.14 Operation of REO Property....................................
Section 9.15 Sale of REO Property.........................................
Section 9.16 Realization on Collateral Security...........................
Section 9.17 [Reserved]...................................................
Section 9.18 [Reserved]...................................................
Section 9.19 [Reserved]...................................................
Section 9.20 Merger or Consolidation......................................
Section 9.21 Resignation of Special Servicers.............................
Section 9.22 Assignment or Delegation of Duties by a Special Servicer.....
Section 9.23 Limitation on Liability of the Special Servicers and
Others......................................................
Section 9.24 Indemnification; Third-Party Claims..........................
Section 9.25 [Reserved]...................................................
Section 9.26 Special Servicers May Own Certificates.......................
Section 9.27 Tax Reporting................................................
Section 9.28 Application of Funds Received................................
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................
Section 9.30 Termination..................................................
Section 9.31 Procedure Upon Termination...................................
Section 9.32 Certain Special Servicer Reports.............................
Section 9.33 Special Servicers to Cooperate with the Master Servicers,
the Paying Agent and the Trustee............................
Section 9.34 [Reserved]...................................................
Section 9.35 [Reserved]...................................................
Section 9.36 Sale of Defaulted Mortgage Loans.............................
Section 9.37 Operating Adviser; Elections.................................
Section 9.38 Limitation on Liability of Operating Adviser.................
Section 9.39 Rights of Operating Adviser..................................
Section 9.40 Rights of the Holders of the Serviced Companion Loans........
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans..........................................
Section 10.2 Procedure Upon Termination of Trust..........................
Section 10.3 Additional REMIC Termination Requirements....................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................
Section 11.2 Access to List of Holders....................................
Section 11.3 Acts of Holders of Certificates..............................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration.........................................
Section 12.2 Prohibited Transactions and Activities.......................
Section 12.3 Modifications of Mortgage Loans..............................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status......................................................
Section 12.5 Grantor Trust Administration.................................
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness........................
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer
and the Trustee.............................................
Section 13.3 Filing Obligations...........................................
Section 13.4 Form 10-D Filings............................................
Section 13.5 Form 10-K Filings............................................
Section 13.6 Xxxxxxxx-Xxxxx Certification.................................
Section 13.7 Form 8-K Filings.............................................
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................
Section 13.9 Annual Compliance Statements.................................
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 13.11 Annual Independent Public Accountants' Servicing Report......
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification.............................................
Section 13.13 Amendments...................................................
Section 13.14 Exchange Act Report Signatures; Article XIII Notices.........
Section 13.15 Termination of the Paying Agent and Sub-Servicers............
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement..................................
Section 15.2 Entire Agreement.............................................
Section 15.3 Amendment....................................................
Section 15.4 GOVERNING LAW................................................
Section 15.5 Notices......................................................
Section 15.6 Severability of Provisions...................................
Section 15.7 Indulgences; No Waivers......................................
Section 15.8 Headings Not to Affect Interpretation........................
Section 15.9 Benefits of Agreement........................................
Section 15.10 Special Notices to the Rating Agencies.......................
Section 15.11 Counterparts.................................................
Section 15.12 Intention of Parties.........................................
Section 15.13 Recordation of Agreement.....................................
Section 15.14 Rating Agency Monitoring Fees................................
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-M Certificate
EXHIBIT A-7 Form of Class A-MFL Certificate
EXHIBIT A-8 Form of Class A-MA Certificate
EXHIBIT A-9 Form of Class A-J Certificate
EXHIBIT A-10 Form of Class A-JFL Certificate
EXHIBIT A-11 Form of Class A-JA Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
EXHIBIT A-16 Form of Class F Certificate
EXHIBIT A-17 Form of Class G Certificate
EXHIBIT A-18 Form of Class H Certificate
EXHIBIT A-19 Form of Class J Certificate
EXHIBIT A-20 Form of Class K Certificate
EXHIBIT A-21 Form of Class L Certificate
EXHIBIT A-22 Form of Class M Certificate
EXHIBIT A-23 Form of Class N Certificate
EXHIBIT A-24 Form of Class O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class Q Certificate
EXHIBIT A-27 Form of Class S Certificate
EXHIBIT A-28 Form of Class X-1 Certificate
EXHIBIT A-29 Form of Class X-2 Certificate
EXHIBIT A-30 Form of Class EI Certificate
EXHIBIT A-31 Form of Class R-I Certificate
EXHIBIT A-32 Form of Class R-II Certificate
EXHIBIT A-33 Form of Class R-III 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 for
Transfers of REMIC Residual Certificates
(Section 3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of REMIC
Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G Form of Primary Servicing Agreement for Principal
Global Investors, LLC
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J List of Loans to Which Excess Servicing Fees Are Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMCH)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (GECC)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (PCFII)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (RBC)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (NatCity)
EXHIBIT K-6 Form of Mortgage Loan Purchase Agreement VI (NCB, FSB)
EXHIBIT K-7 Form of Mortgage Loan Purchase Agreement VII
(Nationwide)
EXHIBIT L [Reserved]
EXHIBIT M Form of Monthly Certificateholders Report
(Section 5.4(a))
EXHIBIT N [Reserved]
EXHIBIT O [Reserved]
EXHIBIT P [Reserved]
EXHIBIT Q [Reserved]
EXHIBIT R Nationwide Primary Servicer Undertaking to Indemnify
EXHIBIT S-1A Form of Power of Attorney to Capmark Master Servicer
(Section 8.3(c))
EXHIBIT S-1B Form of Power of Attorney to Xxxxx Fargo Master
Servicer (Section 8.3(c))
EXHIBIT S-1C Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A Form of Power of Attorney to Co-op Special Servicer
(Section 9.4(a))
EXHIBIT S-2B Form of Power of Attorney to General Special Servicer
(Section 9.4(a))
EXHIBIT T Form of Subordination Agreement for NCB, FSB
Subordinate Debt
EXHIBIT U [Reserved]
EXHIBIT V [Reserved]
EXHIBIT W [Reserved]
EXHIBIT X [Reserved]
EXHIBIT Y Investor Certification (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification regarding Defeasance
of Mortgage Loan (Section 8.3(h))
EXHIBIT AA Additional Disclosure Notification
EXHIBIT BB-1 Form of Xxxxxxxx-Xxxxx Certification (Section 13.6)
EXHIBIT BB-2 Form of Master Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-3 Form of Special Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-4 Form of Trustee Performance Certification (Section
13.6)
EXHIBIT BB-5 Form of Paying Agent Performance Certification
(Section 13.6)
EXHIBIT BB-6 Form of Reporting Sub-Servicer Performance
Certification (Section 13.6)
EXHIBIT CC Centerline Naming Convention
SCHEDULE I MSMCH Loan Schedule
SCHEDULE II GECC Loan Schedule
SCHEDULE III PCFII Loan Schedule
SCHEDULE IV RBC Loan Schedule
SCHEDULE V NatCity Loan Schedule
SCHEDULE VI NCB, FSB Loan Schedule
SCHEDULE VI-2 Nationwide Loan Schedule
SCHEDULE VII List of Escrow Accounts Not Currently Eligible
Accounts (Section 8.3(e))
SCHEDULE VIII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX List of Mortgagors that are Third-Party Beneficiaries
Under Section 2.3(a)
SCHEDULE X [Reserved]
SCHEDULE XI Earn-Out Reserves
SCHEDULE XII List of Mortgage Loans for which a Scheduled Payment
is Due After the End of a Collection Period
SCHEDULE XIII List of Mortgage Loans that Permit Voluntary
Principal Prepayment Without Payment of a Full
Month's Interest
SCHEDULE XIV Rates Used in Determination of Class X Pass-Through
Rates
SCHEDULE XV [Reserved]
SCHEDULE XVI Relevant Servicing Criteria
SCHEDULE XVII Additional Form 10-D Disclosure
SCHEDULE XVIII Additional Form 10-K Disclosure
SCHEDULE XIX Form 8-K Disclosure Information
SCHEDULE XX Seller Sub-Servicers
THIS POOLING AND SERVICING AGREEMENT is dated as of November 1, 2007
(this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), CAPMARK FINANCE INC., as a master servicer (the
"Capmark Master Servicer"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a master
servicer (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as a master servicer
(the "NCB Master Servicer"), CENTERLINE SERVICING INC., as a special servicer
(the "General Special Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a
special servicer (the "Co-op Special Servicer"), LASALLE BANK NATIONAL
ASSOCIATION, as trustee and custodian of the Trust (respectively, the "Trustee"
and "Custodian"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as paying agent,
authenticating agent and certificate registrar of the Trust (respectively, the
"Paying Agent," "Authenticating Agent" and "Certificate Registrar).
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC (successor to Xxxxxx Xxxxxxx
Mortgage Capital Inc.), as seller ("MSMCH"), Royal Bank of Canada, as seller
("RBC"), General Electric Capital Corporation, as seller ("GECC"), Principal
Commercial Funding II, LLC, as seller ("PCFII"), NCB, FSB, as seller ("NCB,
FSB"), Nationwide Life Insurance Company, as seller ("Nationwide") and National
City Bank, as seller ("NatCity"), 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 Regular Certificates, the Floating Rate Regular Interests and
the Class R-III Certificates as consideration for its transfer of the REMIC II
Regular Interests to the Trust; (iv) the Floating Rate Certificates as
consideration for its transfer of the related Class of Floating Rate Regular
Interest and the related Swap Transaction to the Trust; and (v) the Class EI
Certificates as consideration for its transfer of the Excess Interest to the
Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC Regular Certificates, the
Floating Rate Regular Interests and the Class R-III Certificates representing in
the aggregate the entire beneficial ownership of REMIC III, (D) the Floating
Rate Certificates representing in the aggregate the entire beneficial ownership
of the related Floating Rate Grantor Trust and (E) the Class EI Certificates
representing in the aggregate the entire beneficial ownership of the Class EI
Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in the
Class EI Grantor Trust for the benefit of the Class EI Certificates. Each of the
Floating Rate Regular Interests, the related Swap Transaction, the related
Floating Rate Account and the related Master Servicer's Floating Rate Account
shall be held in the related Floating Rate Grantor Trust for the benefit of the
related Class of Floating Rate Certificates. All covenants and agreements made
by the Depositor and the Trustee herein with respect to the Mortgage Loans and
the other property constituting the Trust are for the benefit of the Holders of
the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular
Certificates, the Floating Rate Certificates, the Floating Rate Regular
Interests, the Swap Counterparty, the Class EI Certificates and the Residual
Certificates. The parties hereto are entering into this Agreement, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
will be offered for sale pursuant to the prospectus (the "Prospectus") dated
June 22, 2007, as supplemented by the free writing prospectus dated November 2,
2007 (together with the Prospectus, the "Preliminary Prospectus Supplement"),
and as further supplemented by the final prospectus supplement dated November
15, 2007 (together with the Prospectus, the "Final Prospectus Supplement") and
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, Class S, Class
EI, Class X-1 and Class X-2 Certificates will be offered for sale pursuant to a
Private Placement Memorandum dated November 15, 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 equal to the Final Rated
Distribution Date (as defined herein). Excess Interest shall not be included as
an asset of REMIC I. The Class R-I Certificates will be designated as the sole
Class of residual interests in REMIC I and will have no Certificate Balance, no
Notional Amount and no Pass-Through Rate, but will be entitled to receive the
proceeds of any assets remaining in REMIC I after all Classes of REMIC I Regular
Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class R-II Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation,
the corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X-1 or Class X-2
Certificates (the "Corresponding Components") and the Original Class REMIC II
Certificate Balance or Notional Balance for each Class of Principal Balance
Certificates or Floating Rate Regular Interests (the "Corresponding
Certificates").
Original Original
Class REMIC II Corresponding
Certificate Corresponding Certificate Components of
Balance or REMIC II Balance Class X-1 or
Corresponding Notional Regular or Notional Class X-2
Certificates Amount Interests (1) Amount Certificates (1)
------------- -------------- ------------- ------------ ----------------
Class A-1 $51,900,000 A-1-1 $3,924,000 A-1-1
A-1-2 $47,976,000 A-1-2
Class A-1A $314,528,000 A-1A-1 $409,000 A-1A-1
A-1A-2 $14,797,000 A-1A-2
A-1A-3 $15,698,000 A-1A-3
A-1A-4 $15,400,000 A-1A-4
A-1A-5 $95,864,000 A-1A-5
A-1A-6 $10,844,000 A-1A-6
A-1A-7 $26,703,000 A-1A-7
A-1A-8 $12,127,000 A-1A-8
A-1A-9 $122,686,000 A-1A-9
Class A-2 $91,100,000 A-2-1 $35,522,000 A-2-1
A-2-2 $55,578,000 A-2-2
Class A-3 $83,000,000 A-3-1 $31,654,000 A-3-1
A-3-2 $51,346,000 A-3-2
Class A-4 $1,276,553,000 A-4-1 $32,617,000 A-4-1
A-4-2 $168,510,000 A-4-2
A-4-3 $74,620,000 A-4-3
A-4-4 $72,400,000 A-4-4
A-4-5 $91,106,000 A-4-5
A-4-6 $837,300,000 A-4-6
Class A-M $194,651,000 A-M $194,651,000 A-M
Class A-MFL $20,000,000 A-MFL $20,000,000 A-MFL
Class A-MA $44,932,000 A-MA $44,932,000 A-MA
Class A-J $130,988,000 A-J $130,988,000 A-J
Class A-JFL $30,000,000 A-JFL $30,000,000 A-JFL
Class A-JA $33,699,000 A-JA $33,699,000 A-JA
Class B $19,469,000 B $19,469,000 B
Class C $25,958,000 C-1 $22,651,000 C-1
C-2 $3,307,000 C-2
Class D $16,224,000 D-1 $5,683,000 X-0
X-0 $10,541,000 D-2
Class E $38,938,000 E-1 $8,631,000 E-1
E-2 $30,307,000 E-2
Class F $12,979,000 F $12,979,000 F
Class G $35,693,000 G-1 $18,592,000 G-1
G-2 $17,101,000 G-2
Class H $25,958,000 H-1 $330,000 H-1
H-2 $25,628,000 H-2
Class J $25,958,000 J $25,958,000 J
Class K $32,448,000 K-1 $10,578,000 K-1
K-2 $21,870,000 K-2
Class L $9,735,000 L $9,735,000 L
Class M $9,734,000 M $9,734,000 M
Class N $9,734,000 N $9,734,000 N
Class O $16,224,000 O $16,224,000 O
Class P $6,490,000 P $6,490,000 P
Class Q $9,734,000 Q $9,734,000 Q
Class S $29,203,781 S $29,203,781 S
------------------
(1) The REMIC II Regular Interests and the Components of the Class X-1 and
Class X-2 Certificates that correspond to any particular Class of
Principal Balance Certificates and Floating Rate Regular Interest also
correspond to each other and, accordingly, constitute the "Corresponding
REMIC II Regular Interests" and the "Corresponding Components,"
respectively, with respect to each other.
(2) The REMIC II Regular Interest A-MFL corresponds to the Class A-MFL Regular
Interest, having an initial Certificate Balance of $20,000,000. The REMIC
II Regular Interest A-JFL corresponds to the Class A-JFL Regular Interest,
having an initial Certificate Balance of $30,000,000.
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 Regular Certificates (or, in
the case of a Class of Floating Rate Certificates, the related Floating Rate
Regular Interest represented thereby) comprising the interests in REMIC III
created hereunder.
Approximate Initial Aggregate
REMIC Regular Initial Certificate Final Scheduled
Certificate Pass-Through Balance Distribution
Designation Rate(1) or Notional Amount Date(2)
---------------------- --------------- --------------------- ----------------
Class A-1 5.320% $51,900,000 07/12/2012
Class A-1A 5.688% $314,528,000 09/12/2017
Class A-2 5.623% $91,100,000 09/12/2012
Class A-3 5.852% $83,000,000 12/12/2016
Class A-4 5.809% $1,276,533,000 10/12/2017
Class A-M 6.111% $194,651,000 11/12/2017
Class A-MFL(3) LIBOR + 1.130% $20,000,000 11/12/2017
Class A-MA 6.107% $44,932,000 11/12/2017
Class A-J 6.153% $130,988,000 11/12/2017
Class A-JFL(3) LIBOR + 1.450% $30,000,000 11/12/2017
Class A-JA 6.153% $33,699,000 11/12/2017
Class B 6.153% $19,469,000 11/12/2017
Class C 6.153% $25,958,000 11/12/2017
Class D 6.153% $16,224,000 11/12/2017
Class E 6.153% $38,938,000 12/12/2017
Class F 6.153% $12,979,000 12/12/2017
Class G 6.153% $35,693,000 12/12/2017
Class H 6.153% $25,958,000 12/12/2017
Class J 6.153% $25,958,000 12/12/2017
Class K 6.153% $32,448,000 12/12/2017
Class L 4.652% $9,735,000 12/12/2017
Class M 4.652% $9,734,000 12/12/2017
Class N 4.652% $9,734,000 12/12/2017
Class O 4.652% $16,224,000 12/12/2017
Class P 4.652% $6,490,000 12/12/2017
Class Q 4.652% $9,734,000 12/12/2017
Class S 4.652% $29,203,781 01/12/2018
Class X-1 0.061% $2,595,830,781 N/A
Class X-2 0.273% $2,529,846,000 N/A
Class R-III(4) N/A N/A N/A
------------------
(1) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(2) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms (except
that each ARD Loan will be prepaid in full on its Anticipated Repayment
Date) in the case of the REMIC Regular Certificates.
(3) Each of the Class A-MFL and Class A-JFL Certificates are not regular
interests in a REMIC but represent ownership of the beneficial interests
in the related Floating Rate Grantor Trust, which is comprised of (i) the
related Floating Rate Regular Interest and the related Swap Transaction
and all payments under the related Floating Rate Regular Interest and the
related Swap Transaction, (ii) all funds and assets on deposit from time
to time in the related Floating Rate Account and (iii) proceeds of all of
the foregoing. The parties intend that the portion of the Trust
representing each Floating Rate Grantor Trust shall be treated as a
grantor trust under subpart E of Part 1 of subchapter J of Chapter 1 of
Subtitle A of the Code.
(4) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all REMIC
Regular Certificates and the Floating Rate Regular Interests have been
reduced to zero and any Realized Losses previously allocated thereto (and
any interest thereon) have been reimbursed.
Class EI Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest (which
will not be a part of any REMIC Pool). The parties intend that (i) the portions
of the Trust representing the Excess Interest and the Excess Interest
Sub-account (such portion of the Trust, the "Class EI Grantor Trust") shall be
treated as a grantor trust under subpart E of Part 1 of subchapter J of Chapter
1 of Subtitle A of the Code and (ii) the Class EI Certificates shall represent
pro rata undivided beneficial interests in the portion of the Trust consisting
of the entitlement to receive Excess Interest.
Class A-MFL Grantor Trust
The parties intend that (i) the portions of the Trust consisting of
the segregated pool of assets consisting of the Class A-MFL Regular Interest,
the related Swap Transaction, the Class A-MFL Floating Rate Account and the
Class A-MFL Master Servicer's Floating Rate Account (such portion of the Trust,
the "Class A-MFL Grantor Trust") will be treated as a separate grantor trust
under subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code
and (ii) the Class A-MFL Certificates shall represent pro rata undivided
beneficial interests in the Class A-MFL Grantor Trust.
Class A-JFL Grantor Trust
The parties intend that (i) the portions of the Trust consisting of
the segregated pool of assets consisting of the Class A-JFL Regular Interest,
the related Swap Transaction, the Class A-JFL Floating Rate Account and the
Class A-JFL Master Servicer's Floating Rate Account (such portion of the Trust,
the "Class A-JFL Grantor Trust") will be treated as a separate grantor trust
under subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code
and (ii) the Class A-JFL Certificates shall represent pro rata undivided
beneficial interests in the Class A-JFL Grantor Trust.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $2,595,830,782.
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 the Excess Interest payable with respect to such
Mortgage Loans) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the 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 Regular
Certificates and the Floating Rate Regular Interests will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates will be
designated as the sole Class of "residual interests" in REMIC III for purposes
of the REMIC Provisions.
ARTICLE I
DEFINITIONS
Section 1.1.Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Accountant" means a Person engaged in the practice of accounting
who is Independent.
"Accrued Certificate Interest" means, with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X-1 and Class X-2 Certificates for each Distribution Date will equal the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date.
"Accrued Component Interest" With respect to each Component of the
Class X-1 and Class X-2 Certificates for any Distribution Date, one month's
interest at the Class X-1 Strip Rate or Class X-2 Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated on a 30/360 basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional Disclosure Notification" means the form of notification
to be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information, which is attached hereto as
Exhibit AA.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 13.5.
"Additional Servicer" means each Affiliate of the Master Servicers,
MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide, NatCity, the Trustee, the Paying
Agent or the Depositor that Services any of the Mortgage Loans and each Person,
other than the Special Servicers, who is not an Affiliate of the Master
Servicers, MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide, NatCity, the Trustee,
the Paying Agent or the Depositor, 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.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees, (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c), (iii) amounts paid to indemnify the Master Servicers, the
Special Servicers, any Primary Servicer, any Other Master Servicer, any Other
Special Servicer, any Other Trustee, any Other Paying Agent, the Certificate
Registrar, the Trustee, the Paying Agent (or any other Person) pursuant to the
terms of this Agreement, (iv) to the extent not otherwise paid, any federal,
state, or local taxes imposed on the Trust or its assets and paid from amounts
on deposit in the Certificate Accounts or Distribution Account, (v) the amount
of any Advance plus interest due thereon and Unliquidated Advances that are not
recovered from the proceeds of a Mortgage Loan or Loan Group upon a Final
Recovery Determination, (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the applicable Master Servicer (or the applicable Special Servicer,
in the case of a Specially Serviced Mortgage Loan) will not, recover from the
related Mortgagor or Mortgaged Property or otherwise, including a Modification
Loss described in clause (ii) of the definition thereof, and (vii) with respect
to a Non-Trust Serviced Pari Passu Loan, the pro rata portion of any fees, costs
and expenses that relate directly to the servicing of the related Non-Trust
Serviced Loan Group and as to which the related Other Master Servicer, the
related Other Special Servicer or the related Other Trustee (in respect of the
servicing advances made by it for such Non-Trust Serviced Loan Group and
excluding the trustee fee and costs and expenses related to REMIC or the trust
fund in accordance with the related Other Pooling and Servicing Agreement) are
entitled to reimbursement pursuant to the related Other Pooling and Servicing
Agreement, that is allocable to such Non-Trust Serviced Pari Passu Loan pursuant
to the related Intercreditor Agreement, to the extent that such amounts are not
payable out of proceeds on such Non-Trust Serviced Pari Passu Loan; provided,
however, that in the case of each Whole Loan, "Additional Trust Expense" shall
not include any of the foregoing amounts that have been recovered from the
related Mortgagor or Mortgaged Property. Notwithstanding anything in this
Agreement to the contrary, "Additional Trust Expenses" shall not include
allocable overhead of a Master Servicer, a Special Servicer, any Other Master
Servicer, any Other Special Servicer, any Other Trustee, an Other Paying Agent,
the Trustee, the Paying Agent or the Certificate Registrar such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses, and similar internal costs and expenses, except to the
extent specifically allowed in this Agreement. No Additional Trust Expense
consisting of any REMIC specific taxes payable in respect of the Mortgage Loans
or out of pocket expenses incurred by the Trust that are allocable to the
Mortgage Loans and that result from the inclusion of the Mortgage Loans in a
REMIC shall be allocated to the Serviced Companion Loans.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the rate that, when applied to the Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date preceding such
Distribution Date) on a 30/360 basis for the related loan accrual period, yields
the amount of interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year (in either case, unless the related Distribution Date
is the Final Distribution Date), shall be determined net of any amounts
transferred to the Interest Reserve Account and (ii) the Adjusted Mortgage Rate
for the loan accrual period relating to the Due Date in March (commencing in
March 2008) (or February if the related Distribution Date is the Final
Distribution Date) shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Account, provided, further, that if
the Maturity Date on any Mortgage Loan occurs on the Due Date in January or
February or if there is a Principal Prepayment on any Mortgage Loan on the Due
Date in January or February, then the Adjusted Mortgage Rate shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate and, in the case of a Non-Trust Serviced Pari Passu Loan, the
applicable Pari Passu Loan Servicing Fee Rate; provided, that, in the case of a
Non-Trust Serviced Pari Passu Loan, the Administrative Cost Rate shall be equal
to the sum of the applicable Pari Passu Loan Servicing Fee Rate and the Trustee
Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to a Master Servicer, a
Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
Advances) pursuant to Section 4.5 of this Agreement and any interest payable to
the related Other Master Servicer or the related Other Trustee, with respect to
the Pari Passu Loan Nonrecoverable Servicing Advances pursuant to Section 4.4(b)
hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person or the failure of a Person to take any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Class EI Grantor Trust or either Floating Rate Grantor Trust as a
grantor trust under the Grantor Trust Provisions or result in the imposition of
a tax upon the Class EI Grantor Trust or either Floating Rate Grantor Trust or
any of their respective assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(f),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests, the REMIC II Regular Interests or, collectively, the REMIC Regular
Certificates and the Floating Rate Regular Interests, as the case may be, at any
date of determination. With respect to a Class of Principal Balance
Certificates, REMIC I Regular Interests or REMIC II Regular Interests, Aggregate
Certificate Balance shall mean the aggregate of the Certificate Balances of all
Certificates or Interests, as the case may be, of that Class at any date of
determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to the ARD Loans,
the date on which a substantial principal payment on an ARD Loan is anticipated
to be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan (other
than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group), 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 (or Serviced Loan
Group, as the case may be) if such delinquency remains uncured, (ii) the date 30
days after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of such Mortgage Loan (or Serviced Loan Group, as the case may
be), other than an extension of the date that a Balloon Payment is due for a
period of less than six months from the original due date of such Balloon
Payment and, with respect to a Non-Trust Serviced Pari Passu Loan, an "appraisal
event" or similar term as determined pursuant to the related Other Pooling and
Servicing Agreement.
"Appraisal Reduction" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or Serviced Loan Group, as the case may
be) (or, in the case of an REO Property, the related REO Mortgage Loan) less the
undrawn principal amount of any letter of credit or debt service reserve, if
applicable, that is then securing such Mortgage Loan, (ii) to the extent not
previously advanced by the applicable Master Servicer or the Trustee, all
accrued and unpaid interest on such Mortgage Loan (or Serviced Loan Group, as
the case may be) (or, in the case of an REO Property, the related REO Mortgage
Loan), at a per annum rate equal to the Mortgage Rate, (iii) all unreimbursed
Advances (including Unliquidated Advances) and interest on Advances (other than
Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan
(or Serviced Loan Group, as the case may be) (or, in the case of an REO
Property, the related REO Mortgage Loan) and (iv) to the extent funds on deposit
in any applicable Escrow Accounts are not sufficient therefor, and to the extent
not previously advanced by the applicable Master Servicer, the applicable
Special Servicer or the Trustee, all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) in respect of such Mortgaged Property or REO Property, as the case
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the full amount of any escrows held
by or on behalf of the Trustee as security for the Mortgage Loan (or Serviced
Loan Group, as the case may be) (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). With respect to each Mortgage Loan that is cross-collateralized with
any other Mortgage Loan, the value of each Mortgaged Property that is security
for each Mortgage Loan in such cross-collateralized group, as well as the
outstanding amounts under each such Mortgage Loan shall be taken into account
when calculating such Appraisal Reduction. Notwithstanding the above, for
purposes of this definition, if a Mortgage Loan is secured by more than one
Mortgaged Property, the Scheduled Principal Balance of that Mortgage Loan shall
not include any amounts relating to a Mortgaged Property that has been defeased.
Each Appraisal or internal valuation for a Required Appraisal Loan shall be
updated annually, for so long as an Appraisal Reduction exists, from the date of
such Appraisal or internal valuation, and each Appraisal (as defined in the
related Other Pooling and Servicing Agreement) or internal valuation of a
Non-Trust Serviced Pari Passu Loan shall be updated as set forth in the related
Other Pooling and Servicing Agreement. In addition, the Operating Adviser may at
any time (including, without limitation, any time following a request by the
holder of a Serviced Companion Loan or Operating Adviser on its behalf, to
advise if there has been a determination that such holder is no longer the
Directing Holder under the related Co-Lender Agreement) request the applicable
Special Servicer to obtain (at the Operating Adviser's expense) an updated
Appraisal, with a corresponding adjustment to the amount of the Appraisal
Reduction. The Appraisal Reduction for each Required Appraisal Loan will be
recalculated based on subsequent Appraisals, internal valuations or updates. Any
Appraisal Reduction for any Mortgage Loan (or Serviced Loan Group) shall be
reduced to reflect any Realized Principal Losses on the Required Appraisal Loan.
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan (or Serviced Loan Group, as the case may be) is brought current
under the then current terms of the Mortgage Loan for at least three consecutive
months, and no Appraisal Reduction will exist as to any Mortgage Loan (or
Serviced Loan Group, as the case may be) after it has been paid in full,
liquidated, repurchased or otherwise disposed of. In the case of a Serviced Loan
Group, any Appraisal Reduction calculated therefor shall be allocated (i) in the
case that the related Serviced Companion Loans are Pari Passu Loans, to the
related Senior Mortgage Loan and the Serviced Companion Loans, on a pari passu
basis, based on their respective outstanding principal balances and (ii) in the
case that the related Serviced Companion Loan is a Subordinate Loan, then first,
to such Subordinate Loan up to its outstanding principal balance and then, to
the related Senior Mortgage Loan; provided that if there are more than one
Subordinate Loans, an Appraisal Reduction shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most subordinate note and
then to the next subordinate note, etc.). Any Appraisal Reduction in respect of
a Non-Trust Serviced Pari Passu Loan shall be calculated by the related Other
Master Servicer in accordance with and pursuant to the terms of the related
Other Pooling and Servicing Agreement.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan or a Non-Trust
Serviced Pari Passu Loan), the appraised value thereof determined by an
Appraisal of the Mortgaged Property securing such Mortgage Loan made by an
Independent appraiser selected by the applicable Master Servicer or the General
Special Servicer, as applicable or, in the case of an internal valuation
performed by the applicable Special Servicer pursuant to Section 6.9, the value
of the Mortgaged Property determined by such internal valuation, and (ii) with
respect to each Mortgaged Property securing a Co-op Mortgage Loan, the appraised
value thereof determined by an Appraisal of the Mortgaged Property securing such
Co-op Mortgage Loan made by an Independent appraiser selected by the NCB Master
Servicer or the Co-op Special Servicer, as applicable, or in the case of an
internal valuation performed by the Co-op Special Servicer pursuant to Section
6.9, the value of the Mortgaged Property determined by such internal valuation,
each determined as if such property were operated as a cooperatively-owned
multifamily residential building (generally equaling the gross sellout value of
all cooperative units in such residential cooperative property (applying a
discount as determined by the appraiser for rent regulated and rent controlled
units) plus the amount of the underlying debt encumbering such residential
cooperative property).
"ARD Loans" means the Mortgage Loans designated on the Mortgage Loan
Schedule as such.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
on such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to the terms hereof) and (ii) with respect to any REO Mortgage
Loan for any Due Date therefor as of which the related REO Property remains part
of the Trust, the scheduled monthly payment of principal and interest deemed to
be due in respect thereof on such Due Date equal to the Scheduled Payment (or,
in the case of a Balloon Mortgage Loan described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"Authenticating Agent" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth
in Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any
Distribution Date and the Mortgage Loans, an amount equal to the aggregate of
the following amounts (a) all amounts on deposit in the Distribution Account as
of the commencement of business on such Distribution Date that represent
payments and other collections on or in respect of the Mortgage Loans and any
REO Properties that were (x) received by a Master Servicer or a Special Servicer
through the end of the related Collection Period (other than any portion thereof
that constituted a portion of the Available Distribution Amount for a prior
Distribution Date as described in clause (a)(y) below) or (y) remitted by the
applicable Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicers in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicers in respect of unpaid Special Servicer Compensation, the Trustee and
the Paying Agent in respect of unpaid Trustee Fees or to the parties entitled
thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts that
constitute Prepayment Premiums or Yield Maintenance Charges, (iv) if such
Distribution Date occurs during January, other than in a leap year, or February
of any year (unless the related Distribution Date is the final Distribution
Date), the Interest Reserve Amounts with respect to Interest Reserve Loans
deposited in the Interest Reserve Account, (v) Excess Interest, (vi) in the case
of each REO Property related to a Serviced Loan Group, all amounts received with
respect to such Serviced Loan Group that are required to be paid to the holder
of the related Serviced Companion Loan, pursuant to the terms of the related
Co-Lender Agreement (which amounts will be deposited into the Serviced Companion
Loan Custodial Account pursuant to Section 5.1(c) and withdrawn from such
account pursuant to Section 5.2(a)) and (vii) Scheduled Payments collected but
due on a Due Date subsequent to the related Collection Period (other than any
portion thereof described in clause (a)(y) above) and (b) if and to the extent
not already among the amounts described in clause (a), (i) the aggregate amount
of any P&I Advances made by a Master Servicer or the Trustee for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest payments made by the Master Servicers for
such Distribution Date pursuant to the terms hereof, and (iii) if a Distribution
Date occurs in March of any year, commencing March 2008 (or February if the
related Distribution Date is the final Distribution Date) or if a Maturity Date
or Principal Prepayment falls on a January or February of any year, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of the related Interest Reserve Loan or Interest
Reserve Loans. For purposes of the definition of "Available Distribution
Amount," the Scheduled Payments and Principal Prepayments referred to in the
proviso in Section 5.2(b) shall be deemed to have been collected in the prior
Collection Period.
"Balloon Mortgage Loan" means a Mortgage Loan (or Serviced Loan
Group, as applicable) that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a remaining principal balance equal to or greater than
5% of its original principal balance as of its stated maturity date, unless
prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class of
Certificates (other than the Floating Rate Certificates) or Floating Rate
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 (other than the Floating Rate Certificates) or Floating Rate
Regular Interest and (ii) the Discount Rate used in calculating the Prepayment
Premium or Yield Maintenance Charge with respect to the Principal Prepayment (or
the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium or Yield Maintenance Charge with respect to that Principal Prepayment
(or the current Discount Rate if not used in such calculation), provided,
however, that under no circumstances will the Base Interest Fraction be greater
than one. If the Discount Rate referred to above is greater than or equal to the
Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction
shall equal zero; provided, however, that if the Discount Rate referred to above
is greater than or equal to the Mortgage Rate on the related Mortgage Loan, but
is less than the Pass-Through Rate on that Class of Certificates or Floating
Rate 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 described in Section 3.7; provided that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, Paying Agent, Custodian, a Master Servicer, a
Primary Servicer or a Special Servicer are located and are authorized or
obligated by law or executive order to remain closed. Upon the request of any
party to this Agreement or the Operating Adviser, the Trustee, the Paying Agent,
the Custodian, each Master Servicer, each Special Servicer and each Primary
Servicer shall provide such party a list of the legal holidays observed by such
entity; provided that each Primary Servicer shall be required to provide the
Operating Adviser and the Master Servicers on or before the first day of January
of each calendar year with a list of each day that will not be a "Business Day"
in the jurisdiction of such Primary Servicer during such calendar year.
"Capmark Master Servicer" means Capmark Finance Inc., and its
permitted successors or assigns.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. Each Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the applicable Special Servicer to
the applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the PCFII Loans.
"Centerline Naming Convention" means the naming convention for
electronic file delivery set forth on Exhibit CC hereto.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by each Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the applicable Master Servicer) pursuant to
Section 5.1(a), each of which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate (other
than the Class X Certificates, the Class EI Certificates and the Residual
Certificates) or Interest as of any Distribution Date, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth on
the face of such Certificate (in the case of a Certificate), or as ascribed
thereto in the Preliminary Statement hereto (in the case of an Interest), minus
(A)(i) the amount of all principal distributions previously made with respect to
such Certificate pursuant to Section 6.5(a) or deemed to have been made with
respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a), as the
case may be and (ii) all Realized Losses allocated or deemed to have been
allocated to such Interest or Certificate pursuant to Section 6.6, plus (B) an
amount equal to the amounts identified in clause (I)(C) of the definition of
Principal Distribution Amount, such increases to be allocated to the Principal
Balance Certificates or Interests in sequential order (i.e., to the most senior
Class first), in each case up to the amount of Realized Losses previously
allocated thereto and not otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"Certificateholders" has the meaning provided in the definition of
"Holder." When used in combination with the name of a Certificate (e.g., REMIC
Regular Certificateholder and Residual Certificateholder), it shall mean a
Holder of such Certificate.
"Certificates" means, collectively, the REMIC Regular Certificates,
the Floating Rate Certificates, the Class EI Certificates, the Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section 13.6.
"Certifying Person" has the meaning set forth in Section 13.6.
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II Regular Interests, REMIC Regular Certificates, Floating Rate Certificates,
Floating Rate Regular Interests and Class EI Certificates, any class of such
Certificates or Interests.
"Class A Senior Certificates" means the Class A-1 Certificates,
Class A-1A Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3 Certificates," "Class A-4 Certificates," "Class A-M
Certificates," "Class A-MFL Certificates," "Class A-MA Certificates," "Class A-J
Certificates," "Class A-JFL Certificates," "Class A-JA Certificates," "Class X-1
Certificates," "Class X-2 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 EI
Certificates," "Class R-I Certificates," "Class R-II Certificates," or "Class
R-III Certificates" mean the Certificates designated as "Class A-1," "Class
A-1A," "Class A-2," "Class A-3," "Class X-0," "Xxxxx X-X," "Class A-MFL," "Class
A-MA," "Class A-J," "Class A-JFL," "Class A-JA," "Class X-1," "Class X-2,"
"Class B," "Class C," "Class D," "Class E," "Class F," "Class G," "Class H,"
"Class J," "Class K," "Class L," "Class M," "Class N," "Class O," "Class P,"
"Class Q," "Class S," "Class EI," "Class R-I," "Class R-II" and "Class R-III,"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits A-1 through A-33.
"Class A-1-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-1.
"Class A-1-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-2.
"Class A-1A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-1.
"Class A-1A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-2.
"Class A-1A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-3.
"Class A-1A-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-4.
"Class A-1A-5 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-5.
"Class A-1A-6 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-6.
"Class A-1A-7 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-7.
"Class A-1A-8 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-8.
"Class A-1A-9 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-9.
"Class A-2-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-1.
"Class A-2-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-2.
"Class A-3-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-3 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3-1.
"Class A-3-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-3 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3-2.
"Class A-4-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-1.
"Class A-4-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-2.
"Class A-4-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-3.
"Class A-4-4 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-4.
"Class A-4-5 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-5.
"Class A-4-6 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-6.
"Class A-J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-J Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"Class A-JA Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-JA Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-JA.
"Class A-JFL Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-JFL Regular Interest, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-JFL.
"Class A-JFL Floating Rate Account" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Capmark Master
Servicer on behalf of the Trustee with respect to the Class A-JFL Certificates,
which shall be entitled "Xxxxx Fargo Bank, National Association, as Paying
Agent, on behalf of LaSalle Bank National Association, as Trustee, in trust for
Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Floating Rate Account,
Class A-JFL" and "Capmark Finance Inc., as Capmark Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Trust 2007-IQ16, Floating Rate Account, Class A-JFL," respectively; provided,
that a Floating Rate Account may be a subaccount of the Distribution Account or
the Certificate Account. The Class A-JFL Floating Rate Account shall be an asset
of the Class A-JFL Floating Rate Grantor Trust.
"Class A-JFL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-JFL Regular Interest and the related Swap
Transaction and all payments under the Class A-JFL Regular Interest and the
related Swap Transaction, (ii) all funds and assets from time to time on deposit
in the related Floating Rate Account and the related Master Servicer's Floating
Rate Account and (iii) proceeds of all of the foregoing.
"Class A-JFL Master Servicer's Floating Rate Account" means the
Master Servicer's Floating Rate Account established and maintained by the
Capmark Master Servicer pursuant to Section 5.3(c) for the Class A-JFL
Certificates.
"Class A-JFL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-JFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate per annum.
"Class A-M Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-M Regular Interest, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-M.
"Class A-MA Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-MA Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-MA.
"Class A-MFL Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-MFL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-MFL.
"Class A-MFL Floating Rate Account" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Capmark Master
Servicer on behalf of the Trustee with respect to the Class A-MFL Certificates,
which shall be entitled "Xxxxx Fargo Bank, National Association, as Paying
Agent, on behalf of LaSalle Bank National Association, as Trustee, in trust for
Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Floating Rate Account,
Class A-MFL" and "Capmark Finance Inc., as Capmark Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Trust 2007-IQ16, Floating Rate Account, Class A-MFL," respectively; provided,
that a 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 Floating Rate Grantor Trust.
"Class A-MFL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-MFL Regular Interest and the related Swap
Transaction and all payments under the Class A-MFL Regular Interest and the
related Swap Transaction, (ii) all funds and assets from time to time on deposit
in the related Floating Rate Account and the related Master Servicer's Floating
Rate Account and (iii) proceeds of all of the foregoing.
"Class A-MFL Master Servicer's Floating Rate Account" means the
Master Servicer's Floating Rate Account established and maintained by the
Capmark Master Servicer pursuant to Section 5.3(c) for the Class A-MFL
Certificates.
"Class A-MFL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-MFL Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate less 0.042% per annum.
"Class B Component" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B.
"Class C-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-1.
"Class C-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-2.
"Class D-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-1.
"Class D-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-2.
"Class E-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E-1.
"Class E-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E-2.
"Class EI Grantor Trust" means that portion of the Trust consisting
of Excess Interest and the Excess Interest Sub-account.
"Class F Component" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F.
"Class G-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-1.
"Class G-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-2.
"Class H-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-1.
"Class H-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-2.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K-1 Component" means a component of the Beneficial interest
in REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K-1.
"Class K-2 Component" means a component of the Beneficial interest
in REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K-2.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class Q Component" means a component of the beneficial interest in
REMIC III evidenced by the Class Q Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest Q.
"Class S Component" means a component of the beneficial interest in
REMIC III evidenced by the Class S Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest S.
"Class X Certificates" means the Class X-1 Certificates and the
Class X-2 Certificates, collectively.
"Class X-1 Notional Amount" means, with respect to the Class X-1
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates (other than the
Floating Rate Certificates) and the Floating Rate Regular Interests, which shall
equal the sum of the then Component Notional Amounts.
"Class X-1 Strip Rate" means, with respect to any Class of
Components (other than Components that are also Class X-2 Components) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of Components that
are also Class X-2 Components, (i) for any Distribution Date occurring on or
before the related Class X-2 Component Crossover Date, a rate per annum equal
to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, minus (y) the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule XVI attached hereto and (2) the Pass
Through Rate for the Class of Corresponding Certificates, and (ii) for any
Distribution Date occurring after the related Class X-2 Component Crossover
Date, a rate per annum equal to (x) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding Certificates (provided that in no event shall any Class X-1 Strip
Rate be less than zero).
"Class X-2 Component Crossover Date" means, (i) with respect to the
Class A-1-2 Component, Class A-1A-2 Component and Class A-2-1 Component, the
Distribution Date in November 2008, (ii) with respect to the Class A-1A-3
Component, Class A-2-2 Component, Class A-3-1 Component, Class K-1 Component,
Class L Component, Class M Component and Class N Component, the Distribution
Date occurring in November 2009, (iii) with respect to the Class A-1A-4, Class
A-3-2 Component, Class A-4-1 Component, Class H-1 Component, Class J Component
and Class K-2 Component, the Distribution Date occurring in November 2010, (iv)
with respect to the Class A-1A-5 Component, Class A-4-2 Component, Class G-1
Component and Class H-2 Component, the Distribution Date occurring in November
2011, (v) with respect to the Class A-1A-6 Component, Class A-4-3 Component,
Class E-1 Component, Class F Component and Class G-2 Component, the Distribution
Date occurring in November 2012, (vi) with respect to the Class A-1A-7
Component, Class A-4-4 Component, Class D-1 Component and Class E-2 Component,
the Distribution Date occurring in November 2013, (vii) with respect to the
Class A-1A-8 Component, Class A-4-5 Component, Class C-1 Component and the Class
D-2 Component, the Distribution Date occurring in November 2014, and (viii) with
respect to the Class A-1A-9 Component, Class A-4-6 Component, Class A-M
Component, Class A-MFL Component, Class A-MA Component, Class A-J Component,
Class A-JFL Component, Class A-JA Component, Class B Component and Class C-2
Component, the Distribution Date occurring in November 2015.
"Class X-2 Components" means each of the Class A-1-2 Component,
Class A-1A-2 Component, Class A-1A-3 Component, Class A-1A-4 Component, Class
A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8
Component, Class A-1A-9 Component, Class A-2-1 Component, Class A-2-2 Component,
Class A-3-1 Component, Class A-3-2 Component, Class A-4-1 Component, Class A-4-2
Component, Class A-4-3 Component, Class A-4-4 Component, Class A-4-5 Component,
Class A-4-6 Component, Class A-M Component, Class A-MFL Component, Class A-MA
Component, Class A-J Component, Class A-JFL Component, Class A-JA Component,
Class B Component, Class C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E-1 Component, Class E-2 Component, Class
F Component, Class G-1 Component, Class G-2 Component, Class H-1 Component,
Class H-2 Component, Class J Component, Class K-1 Component, Class K-2
Component, Class L Component, Class M Component and Class N Component.
"Class X-2 Notional Amount" means as of any date of determination,
the sum of the then Component Notional Amounts of the Class X-2 Components
excluding the Class X-2 Components for which the Class X-2 Crossover Date has
been previously passed.
"Class X-2 Strip Rate" means, with respect to each of the Class X-2
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule XVI attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe anonyme.
"Closing Date" means November 29, 2007.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Advance Recovery Report" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website.
"CMSA Bond Level File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Paying Agent, as applicable.
"CMSA Collateral Summary File" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Paying Agent, as applicable.
"CMSA Comparative Financial Status Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website.
"CMSA Delinquent Loan Status Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Closing Date on the
CMSA Website.
"CMSA Financial File" means a data file substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website.
"CMSA Historical Liquidation Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Liquidation Loss Report" available as of the Closing Date on
the CMSA Website.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" means a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website.
"CMSA Loan Level Reserve/LOC Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Level Reserve/LOC Report" available as of the Closing Date on the
CMSA Website.
"CMSA Loan Periodic Update File" means a monthly data file
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website.
"CMSA Loan Setup File" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website.
"CMSA NOI Adjustment Worksheet" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website.
"CMSA Operating Statement Analysis Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website.
"CMSA Property File" means a data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website.
"CMSA Reconciliation of Funds" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Paying Agent.
"CMSA REO Status Report" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the CMSA, such new reports will be used in this
transaction (provided, however, that insofar as any such new report requires the
presentation of information in addition to that called for by the current CMSA
reports, such new report is reasonably acceptable to a Master Servicer or a
Special Servicer, as applicable) and the Depositor shall direct the Paying Agent
as to whether such reports will be Restricted Servicer Reports or Unrestricted
Servicer Reports. The Paying Agent shall provide the Master Servicers and
Special Servicers with a copy of such direction within two Business Days after
its receipt. In the case of each Mortgaged Property securing a Co-op Mortgage
Loan, the respective files and reports comprising the CMSA Reports shall present
the Projected Net Cash Flow for such Mortgaged Property and the Debt Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential
cooperative properties, if and to the extent that such file or report requires
preparation and/or submission of data concerning net cash flow or debt service
coverage.
"CMSA Servicer Watch List" means a report substantially in the form
of, and containing the information called for in, the downloadable form of
"Servicer Watch List" available as of the Closing Date on the CMSA Website;
provided, however, that, notwithstanding the foregoing, the NCB Master Servicer
shall not be required to include a Co-op Mortgage Loan on the Servicer Watch
List on account of the Debt Service Coverage Ratio of such Co-op Mortgage Loan,
unless such Debt Service Coverage Ratio shall fall below 0.90x (for purposes of
the calculation of the Debt Service Coverage Ratio of a Co-op Mortgage Loan for
this definition only, the Projected Net Cash Flow of the related Mortgaged
Property shall be adjusted to reflect the actual expenses incurred by the
Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the applicable Special Servicer.
"CMSA Total Loan Report" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Total Loan Report" available as of the Closing Date on the CMSA Website.
"CMSA Website" means the CMSA's website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Co-Lender Agreement" means, (i) with respect to a Serviced Loan
Group, a co-lender agreement or agreement among noteholders between the holders
of the related Senior Mortgage Loan and the Serviced Companion Loans and (ii)
with respect to a Non-Trust Serviced Loan Group, a co-lender agreement between
the holders of such Non-Trust Serviced Pari Passu Loan and the related Non-Trust
Serviced Companion Loan.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property, as identified on Schedule VI hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank,
or any successor Special Servicer as herein provided, including without
limitation any successor Special Servicer appointed pursuant to Section 9.39
hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related assets of the Trust.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and each Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loans (but
not including the Non-Trust Serviced Pari Passu Loans) during the related
Collection Period, over (B) the aggregate of the Prepayment Interest Excesses
received in respect of the Mortgage Loans serviced by such Master Servicer
resulting from Principal Prepayments on such Mortgage Loan (but not including
the Non-Trust Serviced Pari Passu Loan) during the same related Collection
Period. Notwithstanding the foregoing, such Compensating Interest shall not (i)
with respect to a Principal Prepayment, exceed the portion of the aggregate
Master Servicing Fee accrued at a rate per annum equal to 2 basis points for the
related Collection Period calculated in respect of such Master Servicer's
Mortgage Loans, including REO Mortgage Loans (but not including the Non-Trust
Serviced Pari Passu Loans), to the extent that such Master Servicer applied the
subject Principal Prepayments in accordance with the terms of the related
Mortgage Loan documents; or (ii) be required to be paid on any Prepayment
Interest Shortfalls incurred in respect of any Specially Serviced Mortgage Loans
or Defaulted Mortgage Loan.
"Component" means each of the Class A-1-1 Component, Class A-1-2
Component, Class A-1A-1 Component, Class A-1A-2 Component, Class A-1A-3
Component, Class A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6
Component, Class A-1A-7 Component, Class A-1A-8 Component, Class A-1A-9
Component, Class A-2-1 Component, Class A-2-2 Component, Class A-3-1 Component,
Class A-3-2 Component, Class A-4-1 Component, Class A-4-2 Component, Class A-4-3
Component, Class A-4-4 Component, Class A-4-5 Component, Class A-4-6 Component,
Class A-M Component, Class A-MFL Component, Class A-MA Component, Class A-J
Component, Class A-JFL Component, Class A-JA Component, Class B Component, Class
C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2 Component,
Class E-1 Component, Class E-2 Component, Class F Component, Class G-1
Component, Class G-2 Component, Class H-1 Component, Class H-2 Component, Class
J Component, Class K-1 Component, Class K-2 Component, Class L Component, Class
M Component, Class N Component, Class O Component, Class P Component, Class Q
Component and Class S Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan (or Serviced Loan Group, as
applicable). With respect to the Mortgaged Property securing a Serviced Loan
Group, only the portion of such amounts payable to the holder of the related
Senior Mortgage Loan shall be included in Condemnation Proceeds. With respect to
the mortgaged properties securing a Non-Trust Serviced Pari Passu Loan, the
Condemnation Proceeds will include only the portion of such net proceeds that is
payable to the holder of such Non-Trust Serviced Pari Passu Loan pursuant to the
related Other Pooling and Servicing Agreement.
"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates (other than the Class X Certificates) or Floating Rate
Certificates outstanding at any time of determination; provided that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates (other
than the Class X Certificates) or Floating Rate 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 1933 Act.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose or the transfer of
Certificates, the principal corporate trust office of the Certificate Registrar
and Paying Agent (which is presently located at Xxxxx Fargo Center, Sixth Street
and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Corporate Trust Services (CMBS), Attention: Xxxxxx Xxxxxxx Capital I
Inc., Series 2007-IQ16) and for all other purposes at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ16, or at such other address as the Certificate Registrar and Paying
Agent may designate from time to time by notice to the Certificateholders, the
Depositor, the Trustee, the Master Servicers and the Special Servicers). The
principal corporate trust office of the Trustee is presently located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services -- Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ16, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders, the Paying Agent, the Depositor, the
Master Servicers and the Special Servicers.
"Corresponding Certificate" means the Class of Certificates (or, in
the case of a Class of Floating Rate Certificates, the related Class of Floating
Rate Regular Interest) as set forth in the Preliminary Statement with respect to
any Corresponding Component or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component (or, in the case of a
Class of Floating Rate Certificates, the related Class of Floating Rate Regular
Interest).
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a) hereof.
"Custodian" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and satisfies the eligibility requirements of the Trustee as
set forth in Section 7.5.
"Custodian Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan (or
Serviced Loan Group, as applicable) 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 Custodian on the Trustee's 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 November 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 November 1, 2007 and
Scheduled Payments due in November 2007 with respect to Mortgage Loans not
having Due Dates on the first of each month have been deemed received on
November 1, 2007, not the actual day on which such Scheduled Payments were due.
"DBRS" means DBRS, Inc.
"Debt Service Coverage Ratio" means either (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the CMSA NOI Adjustment Worksheet based on the most recent annual, year-end
operating statements provided by the Mortgagor (or if no annual, year-end
operating statements have been provided, based on such information provided by
the Mortgagor, including without limitation rent rolls and other unaudited
financial information, as the applicable Master Servicer shall determine in
accordance with the Servicing Standard) to (2) the annualized amount of debt
service payable on that Mortgage Loan or, in the case of Mortgage Loans that are
interest-only, where periodic payments are interest-only for a certain amount of
time after origination after which date the Mortgage Loan amortizes principal
for the remaining term of the Mortgage Loan, the annualized amount of debt
service that will be payable under the Mortgage Loan after the beginning of the
amortization term of the Mortgage Loan, or (b) with respect to any Co-op
Mortgage Loan, as of any date of determination, the ratio of (1) the Projected
Net Cash Flow for the related Mortgaged Property on an annualized basis to (2)
the annualized amount of debt service payable on that Co-op Mortgage Loan. With
respect to a Serviced Loan Group, the annualized debt service amount in clause
(a)2 above shall include the related Senior Mortgage Loan and the Serviced
Companion Loans that are Pari Passu Loans but, unless otherwise noted, shall not
include the Serviced Companion Loans that are Subordinate Loans.
"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 (or Serviced Loan Group, as applicable) as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred as a result of any such proceeding, but not forgiven, the
amount of the reduction shall include only the net present value (calculated at
the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan (or Serviced Loan
Group, as applicable) that is in default under the terms of the applicable
Mortgage Loan documentation and for which any applicable grace period has
expired and, with respect to a Serviced Loan Group, such default is unremedied
by the exercise of a cure right under the related Co-Lender Agreement.
"Defeasance Collateral" means, with respect to any Defeasance Loan,
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan (or Serviced Loan Group,
as applicable) which requires or permits the related Mortgagor (or permits the
holder of such Mortgage Loan to require the related Mortgagor) to pledge
Defeasance Collateral to such holder in lieu of prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan
(other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as
applicable), a valuation by a court of competent jurisdiction of the Mortgaged
Property relating to such Mortgage Loan in an amount less than the then
outstanding indebtedness under such Mortgage Loan (or Serviced Loan Group, as
the case may be), 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 (or
Serviced Loan Group, as the case may be). With respect to the Mortgaged
Properties securing a Non-Trust Serviced Loan Group, the pro rata portion of the
valuation allocable to such Non-Trust Serviced Pari Passu Loan pursuant to the
terms of the related Other Pooling and Servicing Agreement).
"Deficient Valuation Amount" means, with respect to each Mortgage
Loan (or Serviced Loan Group, as applicable), the amount by which the total
amount due with respect to such Mortgage Loan (or Serviced Loan Group, as the
case may be) (excluding interest not yet accrued), including the Principal
Balance of such Mortgage Loan (or Serviced Loan Group, as the case may be) 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; provided, however, that with respect to a
Serviced Loan Group, the Deficient Valuation Amount allocable to the related
Senior Mortgage Loan shall be determined pursuant to the related Co-Lender
Agreement.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Depositor" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means, with respect to any Distribution Date
and any of the Mortgage Loans (or Serviced Loan Groups, as applicable), the 8th
day of the month in which such Distribution Date occurs or, if such day is not a
Business Day, the immediately succeeding Business Day, commencing December 10,
2007.
"Directing Holder" means, with respect to a Serviced Loan Group, the
holder of the related Serviced Companion Loan that is designated pursuant to the
terms of the related Co-Lender Agreement as the party who is entitled to direct,
consult with or advise the applicable Master Servicer or the applicable Special
Servicer, as applicable, regarding certain actions or inactions with respect to
such Serviced Loan Group.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the applicable Special Servicer on behalf of the Trustee) shall not
be considered to Directly Operate an REO Property solely because the Trustee (or
the applicable Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs, tenant improvements or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in connection with leasing activity)
or undertakes any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the applicable Master Servicer will select a comparable publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMIC Pools, or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates (other than the Floating Rate
Certificates) or Interests (including the Floating Rate Regular Interests), the
sum of (A) Accrued Certificate Interest in respect of such Class or Interest,
reduced (to not less than zero) by (i) any Net Aggregate Prepayment Interest
Shortfalls for such Class of Certificates or Interests, allocated on such
Distribution Date to such Class or Interest pursuant to Section 6.7, and (ii)
Realized Losses allocated on such Distribution Date to reduce the Distributable
Certificate Interest payable to such Class or Interest pursuant to Section 6.6,
plus (B) the Unpaid Interest, plus (C) if the Aggregate Certificate Balance is
reduced because of a diversion of principal in accordance with Section
5.2(a)(II)(iv), and there is a subsequent recovery of amounts as described in
Section 6.6(c)(i), then interest at the applicable Pass-Through Rate that would
have accrued and been distributable with respect to the amount by which the
Aggregate Certificate Balance was so reduced, which interest shall accrue from
the date that the related Realized Loss is allocated through the end of the
Interest Accrual Period related to the Distribution Date on which such amounts
are subsequently recovered.
"Distribution Account" means the Distribution Account maintained by
the 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 the fourth Business Day following the
Determination Date, commencing December 14, 2007.
"Due Date" means, with respect to a Mortgage Loan (or Serviced Loan
Group, as applicable), the date on which a Scheduled Payment is first due
without the application of grace periods.
"Eligible Account" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "F-1" by Fitch, "A-1" by S&P and "R-1(middle)" by
DBRS or, if not rated by DBRS, an equivalent rating such as those listed above
by at least two nationally recognized statistical rating organizations (which
may include S&P, Fitch and/or Xxxxx'x), if the deposits are to be held in the
account for 30 days or less, or (B) long term unsecured debt obligations are
rated at least "AA-" (or "A" (without regard to any plus or minus) if the
short-term unsecured debt obligation is rated at least "F-1") by Fitch, "AA-"
(or "A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") by S&P and "A(high)" by DBRS (or if not
rated by DBRS, an equivalent rating (such as those listed above for Fitch and
S&P) by at least two nationally recognized statistical rating organizations
(which may include S&P, Fitch and/or Xxxxx'x)), if the deposits are to be held
in the account more than 30 days, (ii) a segregated trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company that, in either case, has trust powers,
acting in its fiduciary capacity, provided that any state chartered depository
institution or trust company is subject to regulation regarding fiduciary funds
substantially similar to 12 C.F.R. Section 9.10(b), (iii) an account or accounts
of a depository institution acceptable to the Rating Agencies, as evidenced by
Rating Agency Confirmation with respect to the use of any such account as a
Certificate Account or the Distribution Account, (iv) in the case of accounts
with respect to NCB, FSB Loans, any account maintained with NCB, FSB (provided
that NCB, FSB has a combined capital and surplus of at least $40,000,000), or
(v) any other account, the use of which would not, in and of itself, (A) cause a
qualification, downgrade or withdrawal of any rating then assigned to any Class
of Certificates by either Rating Agency and (B) be inconsistent with the
requirements of FASB 140 or any other interpretations with respect thereto
applicable to such accounts. Notwithstanding anything in the foregoing to the
contrary, an account shall not fail to be an Eligible Account solely because it
is maintained with Xxxxx Fargo Bank, 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 "F-1" in the case of Fitch, "A-1" in the case of S&P and
"R-1(middle)" in the case of DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x), 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 "A+" by Fitch, "AA"
(or "A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") by S&P, and "AA(low)" in the case of DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations (which may include S&P, Fitch and/or Xxxxx'x), if the deposits are
to be held in the account for more than 30 days.
"Eligible Investments" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit
of the United States of America; provided that any obligation of FNMA or
FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC,
shall be an Eligible Investment only if Rating Agency Confirmation is
obtained with respect to such investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the
Master Servicers, the Special Servicers, the Paying Agent or any Affiliate
of the Trustee, a Master Servicer, the Special Servicers or the Paying
Agent, acting in its commercial capacity) incorporated or organized under
the laws of the United States of America or any State thereof and subject
to supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated "F-1" by Fitch, "A-1"
(without regard to any plus or minus) by S&P and "R-1(middle)" by DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x)) or the
long-term unsecured debt obligations of such depository institution or
trust company have been assigned a rating by each Rating Agency at least
equal to "AA" by Fitch, "AA-" by S&P or its equivalent and "AA(low)" by
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x)) or, in
each case, if not rated by a Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to
be withdrawn from a Certificate Account and which meets the minimum rating
requirement for such entity described above (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated at least "AA" or its equivalent by
each Rating Agency, unless otherwise specified in writing by the Rating
Agency; provided that securities issued by any particular corporation will
not be Eligible Investments to the extent that investment therein will
cause the then-outstanding principal amount of securities issued by such
corporation and held in a Certificate Account to exceed 5% of the sum of
the aggregate Certificate Principal Balance of the Principal Balance
Certificates and the aggregate principal amount of all Eligible
Investments in the Certificate Account;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "F-1+" by Fitch, "A-1" (without regard to any plus or minus) by S&P,
and "R-1(middle)" by DBRS (and, if not rated by DBRS, an equivalent rating
(such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch
and/or Xxxxx'x)) (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(vi) units of investment funds (including money market funds) that
are rated in the highest long term category by Fitch, "AAAm" by S&P (or if
not rated by either such Rating Agency, for which a Rating Agency
Confirmation is obtained from the applicable Rating Agency), and "AAA" by
DBRS, or if not rated by DBRS, an equivalent rating (such as those listed
above for Fitch and S&P) by at least two nationally recognized statistical
rating organizations (which may include S&P, Fitch and/or Xxxxx'x);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long
term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and S&P, or for which Rating Agency Confirmation is obtained with
respect to such ratings, and "AA(low)" by DBRS (or, if not rated by DBRS,
an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations (which
may include S&P, Fitch and/or Xxxxx'x)); provided that, with respect to
S&P, such agreements state that funds may be withdrawn at par without
penalty;
(viii) any money market funds (including those managed or advised by
the Trustee or the Paying Agent or any of their Affiliates) that maintain
a constant asset value and that are rated "AAA" (or its equivalent) by
Fitch (if so rated by Fitch), "AAAm" or "AAAm G" (or its equivalent) by
S&P and "AAA" (or its equivalent) by DBRS (and, if not rated by DBRS, an
equivalent rating by at least two nationally recognized statistical rating
organizations (which may include S&P, Fitch and/or Xxxxx'x)), 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 applicable
Master Servicer or the applicable Special Servicer at the applicable
Master Servicer's or the applicable Special Servicer's expense), as are
acceptable to the Rating Agencies (as evidenced by Rating Agency
Confirmation) and treated as "permitted investments" that are "cash flow
investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicers but not yet deposited in the Certificate
Accounts) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account deemed
to be a sub-account of the Distribution Account, in accordance with the
provisions of Section 5.3. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan (or Serviced Loan Group, as applicable), the excess of (i) Liquidation
Proceeds of a Mortgage Loan or Serviced Loan Group, as applicable, or related
REO Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or Serviced
Loan Group, as the case may be) on the date such proceeds were received plus
accrued and unpaid interest with respect to such Mortgage Loan and all expenses
(including Additional Trust Expenses and Unliquidated Advances) with respect to
such Mortgage Loan (or Serviced Loan Group, as the case may be).
"Excess Servicing Fee" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto
or their successors and assigns, as holders of excess servicing rights, which
fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as applicable.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense, and with respect to a Non-Trust Serviced Pari Passu
Loan, without duplication, the pro rata portion of similar items to the
Additional Trust Expenses, as such expenses are incurred by the trust formed
pursuant to the related Other Pooling and Servicing Agreement or the parties
thereto, to the extent allocable to such Non-Trust Serviced Pari Passu Loan.
"Extension" has the meaning set forth in Section 9.15(a).
"FASB 140" means the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities," issued in September 2002.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class of Certificates, the Distribution Date in December 2049.
"Final Recovery Determination" means a determination with respect
to: (i) any Mortgage Loan (or Serviced Loan Group, as applicable) other than a
Specially Serviced Mortgage Loan), by the applicable Master Servicer in
consultation with the applicable Special Servicer and (ii) with respect to any
Specially Serviced Mortgage Loan (including a Mortgage Loan (or Serviced Loan
Group, as the case may be) that became an REO Property) by the applicable
Special Servicer, in each case, in its good faith discretion, consistent with
the Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries which
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, expects to be finally recoverable on such Mortgage Loan (or Serviced
Loan Group, as the case may be), without regard to any obligation of such Master
Servicer or the Trustee, as the case may be, to make payments from its own funds
pursuant to Article IV hereof, have been recovered. With respect to each
Mortgage Loan that is cross-collateralized by Mortgaged Properties securing
other Mortgage Loans, all of the Mortgaged Properties and other security must be
considered in connection with any such Final Recovery Determination. The
applicable Special Servicer shall be required to provide the applicable Master
Servicer with prompt written notice of any Final Recovery Determination with
respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan upon making
such determination. The applicable Master Servicer shall promptly notify the
Trustee 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 the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch, Inc. or its successor in interest.
"Fixed Interest Distribution" means, with respect to each Class of
Floating Rate Regular Interests, the payments of interest required to be made in
respect of each Distribution Date, commencing in December 2007, by the Capmark
Master Servicer on behalf of the Trustee to the Swap Counterparty pursuant to
the related Swap Transaction at a rate equal to the Pass-Through Rate of such
Floating Rate Regular Interest on the related Floating Rate Certificate Notional
Amount subject to reduction in accordance with the related Swap Transaction.
"Floating Rate Account" means any of the Class A-MFL Floating Rate
Account and the Class A-JFL Floating Rate Account.
"Floating Rate Available Funds" means, with respect to each Class of
the Floating Rate Regular Interests, 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 such Floating Rate
Regular Interest received by the Paying Agent (or the Capmark 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 such Floating Rate Regular
Interest pursuant to the related Swap Transaction, 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 such Floating
Rate Regular Interest for so long as the related Swap Transaction is in effect
and (b) all regularly scheduled interest payments required to be paid to the
Swap Counterparty in respect of such Floating Rate Regular Interest pursuant to
the related Swap Transaction.
"Floating Rate Certificates" means either the Class A-MFL or Class
A-JFL Certificates.
"Floating Rate Certificate Notional Amount" means, with respect to
each Class of the Floating Rate Certificates, a notional amount equal to the
Certificate Balance of the related Floating Rate Regular Interest.
"Floating Rate Grantor Trust" means either the Class A-MFL Grantor
Trust or the Class A-JFL Grantor Trust.
"Floating Rate Interest Distribution Amount" means, with respect to
each Class of the Floating Rate Regular Interests, in respect of any
Distribution Date, the sum of (i) for so long as the related Swap Transaction is
in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the related Floating Rate Regular Interest
pursuant to the terms of the related Swap Transaction during the related
Interest Accrual Period and (ii) amounts in respect of interest (including
reimbursement of any Prepayment Interest Shortfalls) received on the related
Floating Rate Regular Interest not required to be paid to the Swap Counterparty
(which will arise due to the netting provisions of the related Swap Agreement or
upon the termination or expiration of the related Swap Agreement). If the Swap
Counterparty defaults on its obligation to pay such interest to the Paying
Agent, or if a Swap Default (that is a payment default by the Swap Counterparty)
occurs and is continuing or if the related Swap Transaction is terminated, the
related Floating Rate Interest Distribution Amount will be an amount equal to
the Distributable Certificate Interest in respect of the related Floating Rate
Regular Interest, until such time as such Swap Default is cured, or such
obligation is paid, as the case may be, or until a replacement Swap Transaction
is obtained.
"Floating Rate Principal Distribution Amount" means, with respect to
each Class of the Floating Rate Regular Interests, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on such Floating Rate Regular Interest on such Distribution Date.
"Floating Rate Regular Interest" means either the Class A-MFL or
Class A-JFL Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section 13.7.
"GECC" has the meaning assigned in the Preliminary Statement hereto.
"GECC Loans" mean, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"GECC Trust Assets" mean the GECC Loans, any REO Properties acquired
by the Trust with respect to the GECC Loans and any and all other related assets
of the Trust.
"General Special Servicer" means Centerline Servicing Inc., or any
successor General Special Servicer as herein provided, including without
limitation any successor General Special Servicer appointed pursuant to Section
9.39.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Holder" means the Person in whose name a Certificate is registered
on the Certificate Register. With respect to a Floating Rate Regular Interest,
"Holder" means the Trustee on behalf of the Trust.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the applicable Master Servicer (other than any Master Servicer,
but which may be an Affiliate of such Master Servicer), or (B) that is a
Specially Serviced Mortgage Loan, any Person designated by the applicable
Special Servicer that would be an "independent contractor" with respect to a
REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC
Pool were a real estate investment trust (except that the ownership test set
forth in such Section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of the Aggregate Certificate Balance or
Notional Amount, as the case may be, of any Class of the Certificates (other
than the Residual Certificates), a Percentage Interest of 35% or more in the
Residual Certificates or such other interest in any Class of the Certificates or
of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool
does not receive or derive any income from such Person and provided that the
relationship between such Person and such REMIC is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other
Person (including a Master Servicer or a Special Servicer) upon receipt by the
Trustee of an Opinion of Counsel, which shall be at the expense of the Person
delivering such opinion to the Trustee, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code), or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available on the CMSA Website.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy (other than amounts required to be paid over to the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan (or Serviced Loan Group, as applicable) or the Servicing
Standard). With respect to the Mortgaged Property securing a Serviced Loan
Group, only the portion of such amounts payable to the holder of the related
Senior Mortgage Loan shall be included in Insurance Proceeds. With respect to a
mortgaged property securing a Non-Trust Serviced Loan Group, the Insurance
Proceeds will include only the portion of such net proceeds that is payable to
the holder of the related Non-Trust Serviced Pari Passu Loan pursuant to the
related Other Pooling and Servicing Agreement.
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest, REMIC II Regular
Interest or Floating Rate Regular Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, for each Class of REMIC Regular Certificates and Floating Rate Regular
Interests, the calendar month immediately preceding the month in which such
Distribution Date occurs and with respect to each Class of Floating Rate
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 Paying Agent pursuant to Section 5.1(a), which account shall
be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicers, the Special Servicers, the Depositor, the holder of any
related Junior Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by a Master Servicer or a Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Income" means income and gain realized on the investment
of funds deposited in the Certificate Account.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"Junior Indebtedness" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"Late Collections" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable), all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"Late Fees" means a fee that is, unless otherwise provided in the
related Co-Lender Agreement, payable to the applicable Master Servicer or the
applicable Special Servicer, as the case may be, to the extent actually
collected from the Mortgagor as provided in the related Mortgage Loan (or
Serviced Loan Group, as applicable) in connection with a late payment made by
such Mortgagor.
"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 Reuters Screen LIBOR01 Page 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 Reuters Screen LIBOR01 Page, LIBOR shall be the arithmetic mean
of the offered quotations obtained by the Swap Counterparty from the principal
London office of four major banks in the London interbank market selected by the
Swap Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major banks in New York City, New York
selected by the Swap Counterparty at approximately 11:00 a.m. New York City time
on the first day of such 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. Notwithstanding the foregoing, LIBOR for the initial Interest Accrual
Period shall be 4.81229%. "Reuters Screen LIBOR01" means the display designated
on the Reuters Monitor Money Rates Service (or such other page as may replace
that page on that service for the purpose of displaying comparable rates or
prices).
"Liquidation Event" means, with respect to any Mortgage Loan (or
Serviced Loan Group), any of the following events: (i) such Mortgage Loan (or
Serviced Loan Group) is paid in full, (ii) a Final Recovery Determination is
made with respect to such Mortgage Loan (or Serviced Loan Group), or (iii) such
Mortgage Loan (or Serviced Loan Group) is otherwise liquidated, sold, disposed
or repurchased pursuant to the terms of this Agreement.
"Liquidation Expenses" means reasonable and direct expenses incurred
by the applicable Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses, appraisal fees, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to disposition of the
Specially Serviced Mortgage Loan shall be (i) paid out of income from the
related REO Property, to the extent available, (ii) paid out of related proceeds
from liquidation or (iii) advanced by the applicable Master Servicer or the
applicable Special Servicer, subject to Section 4.4 and Section 4.6(d) hereof,
as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and
(y) the Liquidation Proceeds received in connection with full or partial
liquidation of a Specially Serviced Mortgage Loan or related REO Property and
any Condemnation Proceeds or Insurance Proceeds received by the Trust (other
than Liquidation Proceeds received in connection with a Non-Trust Serviced Pari
Passu Loan, except as set forth in Section 2.3(a) hereof); provided, however,
that (A) in the case of a final disposition consisting of the repurchase of a
Mortgage Loan or REO Property by a Seller pursuant to Section 2.3, such fee will
only be paid by such Seller and due to the applicable 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; or (B) in the
case of a repurchase of a Mortgage Loan by the holder of a related Serviced
Companion Loan or a related mezzanine lender, such fee will only be due to the
applicable Special Servicer as provided for in the related Co-Lender Agreement
(and if permitted in the related Co-Lender Agreement) or, if not provided
therein, if repurchased more than 60 days after a Master Servicer, a Special
Servicer, the Paying Agent or the Trustee receives notice of the default causing
the repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan (or Serviced Loan Group, as applicable) or
related REO Property (other than pursuant to Section 2.3), the proceeds of such
sale or liquidation net of Liquidation Expenses (to the extent not otherwise
paid pursuant to Section 4.6(c)) (and with respect to the sale or liquidation of
any REO Property related to a Non-Trust Serviced Loan Group, any portion of such
amounts allocable to such Non-Trust Serviced Pari Passu Loan) and (ii) with
respect to the repurchase of a Mortgage Loan or an REO Mortgage Loan pursuant to
Section 2.3, the Purchase Price of such Mortgage Loan or REO Mortgage Loan (or
such allocable portion) at the time of such repurchase. With respect to the
Mortgaged Property securing a Serviced Loan Group, only the portion of such
amounts payable to the holder of the related Senior Mortgage Loan shall be
included in Liquidation Proceeds. With respect to a Non-Trust Serviced Loan
Group, the Liquidation Proceeds will include only the portion of such net
proceeds that is payable to the holder of the related Non-Trust Serviced Pari
Passu Loan pursuant to the related Other Pooling and Servicing Agreement.
"Liquidation Realized Loss" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses) incurred in connection with such Mortgage
Loan that are payable or reimbursable to any Person, other than amounts
previously treated as Expense Losses or included in the definition of
Liquidation Expenses minus the sum of (i) REO Income allocated as recoveries of
principal or interest on the related Mortgage Loan, and (ii) with respect to any
Mortgage Loan, Liquidation Proceeds, Late Collections and all other amounts
received from the related Mortgagor and received during the Collection Period in
which such Cash Liquidation or REO Disposition occurred (and, with respect to a
Serviced Loan Group, which are not required under the related Co-Lender
Agreement to be paid or reimbursable to the holders of the related Serviced
Companion Loans). REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
Principal Balance of such Mortgage Loan, calculated as described in clause (A)
above in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan Group Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the Appraised Value of the Mortgaged Property as
shown on the most recent Appraisal or valuation of the Mortgaged Property which
is available as of such date. With respect to a Serviced Loan Group, the
numerator of the Loan-to-Value Ratio shall include the related Senior Mortgage
Loan and the Serviced Companion Loans that are Pari Passu Loans but, unless
otherwise noted, shall not include the Serviced Companion Loans that are
Subordinate Loans.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any MSMCH Loan, any
GECC Loan, any PCFII Loan and any NatCity Loan, any REO Property acquired by the
Trust with respect to such Mortgage Loan and any matters relating to the
foregoing, the Capmark Master Servicer; (b) with respect to any RBC Loan and any
Nationwide Loan, any REO Property acquired by the Trust with respect to such
Mortgage Loan and any matters relating to the foregoing, the Xxxxx Fargo Master
Servicer; and (c) with respect to any NCB, FSB Loan, any REO Property acquired
by the Trust with respect to an NCB, FSB Loan and any matters relating to the
foregoing, the NCB Master Servicer.
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicer's Floating Rate Account" means either the Class
A-MFL Master Servicer's Floating Rate Account or the Class A-JFL Master
Servicer's Floating Rate Account.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan, as to which
there is no Master Servicing Fee payable to the Master Servicers) and Serviced
Companion Loan, 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 or Serviced
Companion Loan, as the case may be, for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan or Serviced Companion Loan, as the case
may be, immediately before the Due Date occurring in such month, subject to
reduction in respect of Compensating Interest, as set forth in Section 8.10(c).
For the avoidance of doubt, Master Servicing Fees are in addition to Primary
Servicing Fees.
"Master Servicing Fee Rate" means, (i) with respect to each Mortgage
Loan (other than a Non-Trust Serviced Pari Passu Loan), the rate per annum
specified as such on the Mortgage Loan Schedule, and (ii) with respect to each
Serviced Companion Loan, a rate per annum to be agreed between the Depositor and
the applicable Master Servicer in consistent with the related Co-Lender
Agreement. With respect to a Non-Trust Serviced Pari Passu Loan, no Master
Servicing Fee Rate is charged by the Master Servicers, but the applicable Pari
Passu Loan Servicing Fee Rate is charged pursuant to the related Other 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 (or
Serviced Loan Group, as applicable), 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
(or Serviced Loan Group, as the case may be) occurring prior to such date of
determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan (or Serviced Loan Group, as the case may be) or
(ii) any grace period permitted by such Mortgage Loan (or Serviced Loan Group,
as the case may be).
"MERS" means Mortgage Electronic Registration Systems, Inc.
"Modification Fee" means a fee, if any, collected in connection with
the modification of a Mortgage Loan (or Serviced Loan Group, as applicable).
"Modification Loss" means, with respect to each Mortgage Loan (or
Serviced Loan Group, as applicable) (i) a decrease in the Principal Balance of
such Mortgage Loan, as a result of a modification thereof in accordance with the
terms hereof, (ii) any expenses connected with such modification, to the extent
(x) reimbursable to the Trustee, the applicable Special Servicer or the
applicable Master Servicer and (y) not recovered from the Mortgagor or (iii) in
the case of a modification of such Mortgage Loan that reduces the Mortgage Rate
thereof, the excess, on each Due Date, of the amount of interest that would have
accrued at a rate equal to the original Mortgage Rate, over interest that
actually accrued on such Mortgage Loan (or Serviced Loan Group, as the case may
be) during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan (or Serviced
Loan Group, as applicable), the Maturity Date, Mortgage Rate, Principal Balance,
amortization term or payment frequency thereof, or the amount of the scheduled
payment thereof, or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"Monthly Certificateholders Report" means a report provided pursuant
to Section 5.4 by the 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
Servicers, the Special Servicers, the Paying Agent and the Trustee, as
applicable, with respect to the Mortgage Pool and with respect to each Loan
Group and, with respect to a Non-Trust Serviced Pari Passu Loan and only to the
extent that such information is provided to the Trustee by another party, the
fees paid to the related Other Master Servicer and the related Other Special
Servicer; (iv) the amount of other fees and expenses accrued and paid from the
Trust Fund, including without limitation Advance reimbursement and interest on
Advances, and specifying the purpose of such fees or expenses and the party
receiving payment of those amounts, if applicable; (v) the amount, if any, of
such distributions to the holders of each Class of Principal Balance
Certificates applied to reduce the respective Certificate Balances thereof; (vi)
the amount of such distribution to holders of each Class of Certificates
allocable to (A) interest accrued (including Excess Interest) at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums or Yield Maintenance Charges (including Prepayment
Premiums or Yield Maintenance Charges distributed in respect of the Floating
Rate Regular Interests 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 Weighted Average REMIC I Net Mortgage Rate (and interest rates by
distributional groups or ranges) of the Mortgage Loans as of the related
Determination Date; (x) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date, with respect to the
Mortgage Pool and with respect to each Loan Group; (xi) the number and aggregate
Scheduled Principal Balance of Mortgage Loans, with respect to the Mortgage Pool
and with respect to each Loan Group (A) delinquent 30-59 days, (B) delinquent
60-89 days, (C) delinquent 90 or more days, (D) as to which foreclosure
proceedings have been commenced, or (E) as to which bankruptcy proceedings have
been commenced; (xii) the number and related Principal Balances of any Mortgage
Loans modified, extended or waived on a loan-by-loan basis since the previous
Determination Date (including a description of any modifications, extensions or
waivers to mortgage loan terms, fees, penalties or payments during the
distribution period as provided to the Paying Agent); (xiii) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (xiv) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the applicable Special Servicer that it has
recovered all payments which it expects to be finally recoverable and the amount
of the proceeds of such sale deposited into the Certificate Account, and (B) the
aggregate amount of other revenues collected by each Special Servicer with
respect to each REO Property during the related Collection Period and credited
to the Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (xv) the Aggregate Certificate Balance
or Notional Amount, as the case may be, of each Class of Certificates before and
after giving effect to the distribution made on such Distribution Date; (xvi)
the aggregate amount of Principal Prepayments made during the related Collection
Period with respect to the Mortgage Pool and with respect to each Loan Group;
(xvii) the Pass-Through Rate applicable to each Class of Certificates for such
Distribution Date; (xviii) the amount of Unpaid Interest, Realized Losses or
Expense Losses, if any, incurred with respect to the Mortgage Loans, including a
breakout by type of such Realized Losses or Expense Losses, with respect to the
Mortgage Pool and with respect to each Loan Group; (xix) the aggregate amount of
Servicing Advances and P&I Advances outstanding separately stated that have been
made by the applicable Master Servicer, the applicable Special Servicer and the
Trustee, with respect to the Mortgage Pool and with respect to each Loan Group
and the aggregate amount of servicing advances made by the related Other Master
Servicer in respect of a Non-Trust Serviced Loan Group (to the extent such
information has been provided to the Paying Agent or the Trustee by a third
party); (xx) the amount of any Appraisal Reductions effected during the related
Collection Period on a loan-by-loan basis and the total Appraisal Reductions in
effect as of such Distribution Date, with respect to the Mortgage Pool and with
respect to each Loan Group (and in the case of a Non-Trust Serviced Pari Passu
Loan, the amount of any appraisal reductions effected under the related Other
Pooling and Servicing Agreement to the extent such information has been provided
to the Paying Agent or the Trustee by a third party); (xxi) any Material
Breaches of Mortgage Loan representations and warranties of which the Trustee,
any Master Servicer or any Special Servicer has received written notice; (xxii)
material breaches of any covenants under this Agreement of which the Trustee,
any Master Servicer or any Special Servicer has received written notice; (xxiii)
if applicable to any transaction, information regarding any tests used for
determining early amortization, liquidation or other performance trigger and
whether the trigger was met; (xxiv) 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 each Swap Transaction
(including, if applicable, the notice required by Section 6.12); (xxv) 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; (xxvi) the amount of and
identification of any payments on each Class of Floating Rate Certificates in
addition to the amount of principal and interest due thereon, such as any
payment received in connection with the related Swap Transaction or any payment
of a Prepayment Premium after the termination of the related Swap Transaction
that is required to be distributed on the related Class of Floating Rate
Certificates pursuant to the terms of this Agreement; and (xxviii) as determined
and/or approved by the Depositor, any other information necessary to satisfy the
requirements of Item 1121(a) of Regulation AB that can, in the Paying Agent's
reasonable judgment, be included on the Monthly Certificateholders Report
without undue difficulty. In the case of information furnished pursuant to
subclauses (v), (vi) and (xv) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed by an allonge attached thereto or endorsed in blank or endorsed
"Pay to the order of LaSalle Bank National Association, as Trustee for the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit and indemnity with a copy of the Mortgage Note
attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in
the jurisdiction in which such power of attorney was executed) or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 90th day following the
Closing Date because of a delay caused by the public recording office
where such original Mortgage has been delivered for recordation or because
such original Mortgage has been lost, the Depositor shall deliver or cause
to be delivered to the Custodian on behalf of the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (B) in the case
of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if
any, with, if applicable, evidence of recording thereon (which are
reflected in the Mortgage Loan Schedule), or if such original
modification, consolidation and extension agreements have been delivered
to the appropriate recording office for recordation and either have not
yet been returned on or prior to the 90th day following the Closing Date
with evidence of recordation thereon or have been lost after recordation,
true copies of such modifications, consolidations and extensions certified
by the applicable Seller together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (B) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation,
a certification by the appropriate county recording office where such
document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording
information not yet available if the instrument being recorded has not
been returned from the applicable recording office), signed by the holder
of record in blank or in favor of "LaSalle Bank National Association, as
Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16" (or, in the case of
a Non-Trust Serviced Pari Passu Loan, in favor of the related Other
Trustee pursuant to the related Other Pooling and Servicing Agreement);
provided that, if the related Mortgage has been recorded in the name of
MERS or its designee, no related Assignment of Mortgage in favor of the
Trustee will be required to be recorded or delivered and instead, the
applicable Seller pursuant to the applicable Mortgage Loan Purchase
Agreement shall take all actions as are necessary to cause the Trustee, on
behalf of the Certificateholders, to be shown as, and shall deliver
evidence of any such transfers to the Master Servicers and the Special
Servicers, and the Custodian on behalf of the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening assignment of Mortgage retained by the applicable Seller, a
copy thereof certified by the applicable Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior
to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
intervening assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or certified by a title insurance company or escrow
company to be a true copy thereof; provided that or, if such Assignment of
Leases has not been returned on or prior to the 90th day following the
Closing Date because of a delay caused by the applicable public recording
office where such Assignment of Leases has been delivered for recordation
or because such original Assignment of Leases has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment of Leases submitted for recording, together with,
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Assignment of
Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is
recorded that such copy is a true and complete copy of the original
recorded Assignment of Leases, in each case together with an original
assignment of such Assignment of Leases, in recordable form (except for
recording information not yet available if the instrument being recorded
has not been returned from the applicable recording office), signed by the
holder of record in blank or in favor of "LaSalle Bank National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16," which
assignment may be effected in the related Assignment of Mortgage (or, in
the case of a Non-Trust Serviced Pari Passu Loan, in favor of the related
Other Trustee pursuant to the related Other Pooling and Servicing
Agreement); provided that, if the related Assignment of Leases has been
recorded in the name of MERS or its designee, no Assignment of Leases or
assignment of Assignment of Leases in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as, and shall deliver evidence of any such
transfers to the Master Servicers and the Special Servicers, and the
Custodian on behalf of the Trustee shall take all actions necessary to
confirm that it is shown as, the owner of the related Assignment of Leases
on the records of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by
the title company or its authorized agent, with the original Title
Insurance Policy to follow within 180 days of the Closing Date, or a copy
of any of the foregoing certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B)
UCC-2 or UCC-3 financing statements assigning such UCC financing
statements to the Trustee (or, in the case of a Non-Trust Serviced Pari
Passu Loan, to the related Other Trustee) executed and delivered in
connection with the Mortgage Loan; provided that, if the related Mortgage
Loan has been recorded in the name of MERS or its designee, no UCC, UCC-2
or UCC-3 financing statement in favor of the Trustee will be required to
be recorded or delivered and instead, the applicable Seller pursuant to
the applicable Mortgage Loan Purchase Agreement shall take all actions as
are necessary to cause the Trustee, on behalf of the Certificateholders,
to be shown as, and shall deliver evidence of any such transfers to the
Master Servicers and the Special Servicers, and the Custodian on behalf of
the Trustee shall take all actions necessary to confirm that the Trustee
is shown as, the secured party on the related UCC financing statements on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan (including,
without limitation, the Co-Lender Agreement);
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned to the
Trustee (and delivered to the Custodian on behalf of the Trustee) on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance
with documents evidencing or securing the applicable Mortgage Loan, this
Agreement and the applicable Primary Servicing Agreement or, (B) the
original of each letter of credit, if any, constituting additional
collateral for such Mortgage Loan (other than letters of credit
representing tenant security deposits which have been collaterally
assigned to the lender), which shall be held by the applicable Primary
Servicer (or the applicable Master Servicer) on behalf of the Trustee and
applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, this Agreement and
the applicable Primary Servicing Agreement (it being understood that each
Seller has agreed (a) that the proceeds of such letter of credit belong to
the Trust, (b) to notify, on or before the Closing Date, the bank issuing
the letter of credit that the letter of credit and the proceeds thereof
belong to the Trust, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the
case of clause (B) above, each Primary Servicer (and the applicable Master
Servicer) acknowledges that any letter of credit held by it shall be held
in its capacity as agent of the Trust, and if a Primary Servicer or a
Master Servicer, as applicable, sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer or a Master Servicer, as
applicable, will assign the applicable letter of credit to the Trust or at
the direction of the applicable Special Servicer to such party as such
Special Servicer may instruct, in each case, at the expense of the Primary
Servicer or a Master Servicer, as applicable. The Primary Servicer (or the
applicable Master Servicer) shall indemnify the Trust for any loss caused
by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans
with a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) the original of any Environmental Insurance Policy or if the
original is held by the related borrower, a copy thereof;
(xvi) a copy of any affidavit and indemnification agreement in favor
of the lender;
(xvii) with respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents; and
(xviii) with respect to a Non-Trust Serviced Pari Passu Loan, a copy
of the related Other Pooling and Servicing Agreement.
With respect to a Non-Trust Serviced Pari Passu Loan, the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Note (and all
intervening endorsements) evidencing such Non-Trust Serviced Pari Passu Loan,
with respect to which the originals shall be required), including a copy of the
related Mortgage.
Notwithstanding the foregoing, in the event that the Custodian
already holds the related document set forth in the above delivery requirements,
such document delivery requirements shall be deemed to be met and no new
delivery shall be required hereunder.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3. Mortgage Loan
shall also include any Defeasance Loan, any REO Mortgage Loan and for the
avoidance of doubt, each Senior Mortgage Loan of a Serviced Loan Group (but not
any Serviced Companion Loan), unless the context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV, Mortgage Loan Purchase
Agreement V and Mortgage Loan Purchase Agreement VI, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan Purchase Agreement between MSMCH and the Depositor dated as of November 1,
2007 with respect to the MSMCH Loans, a form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage
Loan Purchase Agreement between GECC and the Depositor dated as of November 1,
2007 with respect to the GECC 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 November 1,
2007 with respect to the PCFII Loans, a form of which is attached hereto as
Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage
Loan Purchase Agreement between RBC and the Depositor dated as of November 1,
2007 with respect to the RBC Loans, a form of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Purchase Agreement V" means that certain Mortgage
Loan Purchase Agreement between NatCity and the Depositor dated as of November
1, 2007 with respect to the NatCity Loans, a form of which is attached hereto as
Exhibit K-5.
"Mortgage Loan Purchase Agreement VI" means that certain Mortgage
Loan Purchase Agreement between NCB, FSB and the Depositor dated as of November
1, 2007 with respect to the NCB, FSB Loans, a form of which is attached hereto
as Exhibit K-6.
"Mortgage Loan Purchase Agreement VII" means that certain Mortgage
Loan Purchase Agreement between Nationwide and the Depositor dated as of
November 1, 2007 with respect to the Nationwide Loans, a form of which is
attached hereto as Exhibit K-7.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMCH Loan, the
schedule attached hereto as Schedule II, which identifies each GECC Loan, the
schedule attached hereto as Schedule III, which identifies each PCFII Loan, the
schedule attached hereto as Schedule IV, which identifies each RBC Loan, the
schedule attached hereto as Schedule V, which identifies each NatCity Loan, the
schedule attached hereto as Schedule VI, which identifies each NCB, FSB Loan,
and the schedule attached hereto as Schedule VI-2, which identifies each
Nationwide Loan, as such schedules may be amended from time to time pursuant to
Section 2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan (or Serviced Loan
Group, as applicable), the per annum rate at which interest accrues on such
Mortgage Loan (or Serviced Loan Group, as the case may be).
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan (or Serviced Loan Group, as applicable).
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMCH" has the meaning assigned in the Preliminary Statement
hereto.
"MSMCH Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"MSMCH Trust Assets" means the MSMCH Loans, any REO Properties
acquired by the Trust with respect to the MSMCH Loans and any and all other
related assets of the Trust.
"NatCity" has the meaning assigned in the Preliminary Statement
hereto.
"NatCity Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule V hereto.
"NatCity Trust Assets" means the NatCity Loans, any REO Properties
acquired by the Trust with respect to the NatCity Loans and any and all other
related assets of the Trust.
"Nationwide" has the meaning assigned in the Preliminary Statement
hereto.
"Nationwide Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VII and shown on
Schedule VI-2 hereto.
"Nationwide Trust Assets" means the Nationwide Loans, any REO
Properties acquired by the Trust with respect to the Nationwide Loans and any
and all other related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary Statement
hereto.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VI and shown on
Schedule VI hereto.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of the loans, or
the sole loan, to be secured by each such subordinate mortgage is made by NCB,
FSB or any Affiliate thereof, (ii) each such subordinate mortgage is expressly
subject and subordinate to the lien of the Mortgage encumbering the Mortgaged
Property in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCB, FSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the Mortgage File a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit T hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $7,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraised Value" shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in conformance with
NCB, FSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the NCB
Master Servicer.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, any REO Properties
acquired by the Trust with respect to the NCB, FSB Loans and any and all other
related assets of the Trust.
"NCB Master Servicer" means NCB, FSB and its permitted successors or
assigns.
"NCB Master Servicer's Website" has the meaning set forth in Section
8.14 hereof.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all Prepayment
Interest Shortfalls incurred in respect of all (or, where specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including Specially
Serviced Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by such Master Servicer (or any Primary
Servicer or Sub-Servicer, if applicable according to the related Primary
Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by each of the Master Servicers.
"Net Swap Payment" has the meaning set forth in Section 8.31(g).
"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.
"NMWHFIT" has the meaning set forth in Section 12.5.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate or a Class EI Certificate that, at the time of
determination, is not rated in one of the four highest generic rating categories
by at least S&P or Fitch.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class X-1, Class X-2, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q, Class S, Class EI or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust, and
(ii) will not cause the Class EI Grantor Trust or either Floating Rate Grantor
Trust to fail to qualify as a grantor trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a Master
Servicer, a Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to such Master Servicer
and such Special Servicer, in accordance with the Servicing Standard, will not
be or, in the case of a current delinquency, would not be, ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with respect to
the related Mortgage Loan or REO Property (or, in the case of Servicing Advances
(but not P&I Advances), the related Serviced Companion Loan), as evidenced by an
Officer's Certificate delivered pursuant to Section 4.4. With respect to each
Mortgage Loan that is cross-collateralized by Mortgaged Properties securing
other Mortgage Loans, all of such Mortgaged Properties and other security must
be considered in connection with any determination of whether an Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's Certificate
shall be delivered to the Trustee (upon which the Trustee may conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's Certificate)
and (in either case) to the applicable Special Servicer and the 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 applicable Master
Servicer's determination as to the nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders (and, in the case of a Serviced
Companion Loan, the holder of such Serviced Companion Loan) and may, in all
cases, be relied on by the Trustee; provided, however, that the applicable
Special Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the applicable Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the applicable Master Servicer and the Trustee;
provided, however, the applicable Special Servicer shall have no such right to
make an affirmative determination that any P&I Advance is or would be
recoverable and, in the absence of a determination by such Special Servicer that
such Advance is or would be a Nonrecoverable Advance, the decision that a P&I
Advance is recoverable shall remain with the applicable Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by a Special
Servicer shall be conclusive and binding on the Certificateholders (and, in the
case of a Serviced Companion Loan, the holder of such Serviced Companion Loan),
the Master Servicers and the Trustee. None of the Master Servicers, the Special
Servicers or the Trustee will be obligated to make any Advance that, in its
judgment (in the case of the Master Servicers and the Special Servicers, in
accordance with the Servicing Standard, and in the case of the Trustee, in
accordance with its good faith business judgment), would not ultimately be
recoverable out of collections on the related Mortgage Loan. Absent bad faith or
breach of the servicing standard under the related Other Pooling and Servicing
Agreement known to the applicable Master Servicer or the Trustee, as applicable,
the determination as to the nonrecoverability of any principal and interest
advance made or proposed to be made with respect to a Non-Trust Serviced
Companion Loan pursuant to the related Other Pooling and Servicing Agreement,
shall be conclusive and binding on the Certificateholders and may, in all cases,
be relied on by the Trustee and the applicable Master Servicer unless the
Trustee or the applicable Master Servicer, as the case may be, has been advised
by the related Other Trustee or the related Other Master Servicer that the party
who made such nonrecoverability determination no longer has the required rating
under the related Other Pooling and Servicing Agreement. In making any
nonrecoverability determination as described above, the relevant party shall be
entitled (i) to consider (among other things) the obligations of the Mortgagor
under the terms of the Mortgage Loan as it may have been modified, (ii) to
consider (among other things) the related Mortgaged Properties in their "as is"
then-current conditions and occupancies and such party's assumptions (consistent
with the Servicing Standard in the case of the applicable Master Servicer or the
applicable Special Servicer) regarding the possibility and effects of future
adverse change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer (among other things), future
expenses, (iv) to estimate and consider, consistent with the Servicing Standard
in the case of the applicable Master Servicer or the applicable Special Servicer
(among other things), the timing of recovery to such party and (v) to consider
the amount of any deferred Advances outstanding. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the applicable Master
Servicer or the applicable Special Servicer, update or change its
nonrecoverability determinations at any time in accordance with the terms hereof
and may, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer, obtain from the applicable
Special Servicer any analysis, appraisals or other information in the possession
of such Special Servicer for such purposes.
"Non-Trust Serviced Companion Loan" means a pari passu or
subordinate note related to a Non-Trust Serviced Pari Passu Loan.
"Non-Trust Serviced Loan Group" means, with respect to a Non-Trust
Serviced Pari Passu Loan, collectively, such Non-Trust Serviced Pari Passu Loan
and the related Non-Trust Serviced Companion Loan(s).
"Non-Trust Serviced Pari Passu Loan" means any of the Mortgage Loans
designated on the Mortgage Loan Schedule as "60 Wall Street," "USFS Industrial
Distribution Portfolio" or "Easton Town Center."
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount of such date of
determination.
"Officer's Certificate" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the applicable Master Servicer(s) and the applicable Special
Servicer(s), any of the officers referred to above or an employee thereof
designated as a Servicing Officer or Special Servicing Officer pursuant to this
Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible
Officer, (y) in the case of a Seller, a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, any Managing Director or Director, the
President, or any Executive Vice President, Senior Vice President, Second Vice
President, Vice President or Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any other
authorized signatory and (z) in the case of the Paying Agent, a certificate
signed by a Responsible Officer, each with specific responsibilities for the
matters contemplated by this Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the applicable Master Servicer (and/or any Primary Servicer acting on behalf of
such Master Servicer), the applicable Special Servicer, or the Trustee and the
Paying Agent, as applicable, reasonably acceptable in form and substance to such
Master Servicer (and/or any Primary Servicer acting on behalf of such Master
Servicer), such Special Servicer, or the Trustee and 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 such Master Servicer (and/or
any Primary Servicer acting on behalf of such Master Servicer), such Special
Servicer, or the Trustee and the Paying Agent, as applicable, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a REMIC for tax purposes, of any REMIC Pool or status as
a "grantor trust" under the Grantor Trust Provisions of the Class EI Grantor
Trust or either Floating Rate Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"Other Master Servicer" means, with respect to a Non-Trust Serviced
Pari Passu Loan, the master servicer for the related Non-Trust Serviced Loan
Group under the applicable Other Pooling and Servicing Agreement.
"Other Paying Agent" means, with respect to a Non-Trust Servicing
Pari Passu Loan, the paying agent, certificate administrator and/or tax
administrator under the related Other Pooling and Servicing Agreement.
"Other Pooling and Servicing Agreement" means a pooling and
servicing agreement relating to a Non-Trust Serviced Companion Loan or a
Serviced Companion Loan that creates a commercial mortgage securitization trust,
as applicable.
"Other Securitization" means a commercial mortgage securitization,
into which a Non-Trust Serviced Companion Loan or a Serviced Companion Loan is
deposited.
"Other Special Servicer" means, with respect to a Non-Trust Serviced
Pari Passu Loan, the special servicer for the related Non-Trust Serviced Loan
Group under the related Other Pooling and Servicing Agreement.
"Other Trustee" means, with respect to a Non-Trust Serviced Pari
Passu Loan, the trustee under the related Other Pooling and Servicing Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, due during the
related Collection Period was not received by the applicable Master Servicer as
of the related Determination Date (subject to Section 5.1(h)), the portion of
such Scheduled Payment not received; (ii) with respect to any Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as
to which a Balloon Payment was due or deemed due during or prior to the related
Collection Period but was delinquent, in whole or in part, as of the related
Determination Date, an amount equal to the excess, if any, of the Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the applicable
Master Servicer by the applicable Special Servicer, reduced by any amounts
required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that the interest portion amount of any P&I Advance with
respect to a Mortgage Loan as to which there has been an Appraisal Reduction
shall be an amount equal to the product of (i) the amount with respect to
interest required to be advanced without giving effect to this proviso and (ii)
a fraction, the numerator of which is the Scheduled Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction applicable to such Mortgage Loan (or, in the case of a
Senior Mortgage Loan of a Serviced Loan Group, after such Appraisal Reduction
has been allocated to the holders of the related Serviced Companion Loans that
are Subordinate Loans or simultaneously with the allocation of such Appraisal
Reduction to the related Serviced Companion Loans that are Pari Passu Loans) and
the denominator of which is the Scheduled Principal Balance of such Mortgage
Loan as of such Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed
for any Distribution Date.
"Pari Passu Loan" means, with respect to a Serviced Loan Group, a
related Serviced Companion Loan that is pari passu in priority with the related
Senior Mortgage Loan.
"Pari Passu Loan Nonrecoverable Servicing Advance" means the pro
rata portion of any "Nonrecoverable Servicing Advance" (or an analogous term
thereto) (as defined in the related Other Pooling and Servicing Agreement)
allocable to a Non-Trust Serviced Pari Passu Loan pursuant to and in accordance
with the related Other Pooling and Servicing Agreement.
"Pari Passu Loan Servicing Fee Rate" means, with respect to a
Non-Trust Serviced Pari Passu Loan, the servicing fee rate applicable to such
Non-Trust Serviced Pari Passu Loan pursuant to the related Other Pooling and
Servicing Agreement.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any Class of REMIC I Regular Interest, REMIC II Regular Interest, REMIC Regular
Certificates, Floating Rate Certificates or Floating Rate Regular Interest, for
the first Distribution Date, the rate set forth in the Preliminary Statement
hereto. For any Distribution Date occurring thereafter, the Pass-Through Rates
for (i) Regular Interests shall equal their respective REMIC I Net Mortgage
Rates, (ii) the REMIC II Regular Interests shall equal the Weighted Average
REMIC I Net Mortgage Rate, (iii) the Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates shall equal the fixed rate corresponding to each such Class set
forth in the Preliminary Statement hereto; (iv) the Class A-1A Certificates
shall equal the fixed rate corresponding to each such Class set forth in the
Preliminary Statement hereto subject to a cap equal to the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class A-MFL and
Class A-JFL Certificates shall equal the per annum rate equal to LIBOR plus
1.130% and 1.450%, respectively, provided, however, that under the circumstances
set forth in Section 6.12 regarding defaults or terminations under the related
Swap Transaction, the Pass-Through Rates of the Class A-MFL and Class A-JFL
Certificates shall equal the Pass-Through Rate of the related Class of Floating
Rate Regular Interests subject to reduction in accordance with the related Swap
Transaction; (vi) the Class A-M Certificates shall equal a per annum rate equal
to the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
minus 0.042%; (vii) the Class A-MA Certificates shall equal a per annum rate
equal to the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date minus 0.046%; (viii) the Class A-J, Class A-JA, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates shall equal
a per annum rate equal to the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date; (ix) the Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates shall equal the fixed rate corresponding to
each such Class set forth in the Preliminary Statement hereto; (x) the Class X-1
Certificates shall equal the per annum rate equal to the weighted average of
Class X-1 Strip Rates for the Components for such Distribution Date (weighted on
the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date), (xi) the Class X-2
Certificates shall equal the per annum rate equal to the weighted average of the
Class X-2 Strip Rates for the respective Class X-2 Components for such
Distribution Date (weighted on the basis of the respective Component Notional
Amounts of such Components outstanding immediately prior to such Distribution
Date); (xii) the Class A-MFL Regular Interest shall equal a per annum rate equal
to the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
minus 0.042%; and (xiii) the Class A-JFL Regular Interest shall equal a per
annum rate equal to the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date.
"Paying Agent" means Xxxxx Fargo Bank, National Association, and any
successor or assign, as provided herein.
"Paying Agent's Website" has the meaning set forth in Section 5.4(a)
hereof.
"PCAOB" means the Public Company Accounting Oversight Board.
"PCFII" has the meaning assigned in the Preliminary Statement
hereto.
"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.
"Penalty Charges" means the default interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Percentage Interest" means, with respect to each Class of
Certificates or Floating Rate 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 (i) a
Disqualified Organization, (ii) a United States Tax Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person or (iii) a United
States Tax Person treated as a partnership for federal income tax purposes, any
partner of which, directly or indirectly (except through a U.S. corporation), is
not (and is not required to be under the related partnership agreement) a United
States Tax Person.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"Placement Agent" means Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Preliminary Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, any servicing fee payable in connection with a Non-Trust
Serviced Pari Passu Loan (if applicable), the Special Servicing Fee and the
Trustee Fee in each case, to the extent payable out of such collection of
interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including any payment of an unscheduled Balloon Payment) made during any
Collection Period prior to the Due Date for such Mortgage Loan in such
Collection Period (including any shortfall resulting from a payment during the
grace period relating to such Due Date). The amount of any Prepayment Interest
Shortfall shall equal the excess of (A) the aggregate amount of interest which
would have accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, any
servicing fee payable in connection with a Non-Trust Serviced Pari Passu Loan
(if applicable), the Special Servicing Fee and the Trustee Fee), over (B) the
aggregate interest that did so accrue at the REMIC I Net Mortgage Rate through
the date such payment was made (net of the Master Servicing Fee, the Primary
Servicing Fees, the Excess Servicing Fees, the Special Servicing Fee and the
Trustee Fee).
"Prepayment Premium" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable) for any Distribution Date, the prepayment
premiums or percentage premiums, if any, received during a related Collection
Period in connection with Principal Prepayments on such Mortgage Loan (or
Serviced Loan Group, as the case may be).
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicer" means, (i) with respect to any PCFII Loan,
Principal Global Investors, LLC, and (ii) with respect to any Nationwide Loan,
Nationwide Life Insurance Company, and such party's permitted successors and
assigns.
"Primary Servicing Agreement" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the applicable Master
Servicer, under which such Primary Servicer services the related Mortgage Loans
(or Serviced Loan Groups, as applicable).
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan (or Serviced Companion Loan, as applicable) for which a Primary
Servicing Fee is payable pursuant to this Agreement, the Primary Servicing Fee
Rate multiplied by the Scheduled Principal Balance of such Mortgage Loan (or
Serviced Companion Loan, as applicable) immediately before the Due Date
occurring in such month, but prorated for the number of days during the calendar
month for such Mortgage Loan (or Serviced Companion Loan, as applicable) for
which interest actually accrues on such Mortgage Loan (or Serviced Companion
Loan, as applicable) and payable only from collections on such Mortgage Loan (or
Serviced Companion Loan, as applicable).
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan (or Serviced
Companion Loan, as applicable) for such month).
"Principal Balance" means, with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable) or any REO Mortgage Loan, for purposes of
performing calculations with respect to any Distribution Date, the principal
balance of such Mortgage Loan (or Serviced Loan Group, as the case may be) or
the related REO Mortgage Loan outstanding as of the Cut-Off Date after taking
into account all principal and interest payments made or due prior to the
Cut-Off Date (assuming, for any Mortgage Loan with a Cut-Off Date in November
2007 that is not November 1, 2007, that principal and interest payments for such
month were paid on November 1, 2007), reduced (to not less than zero) by (i) any
payments or other collections of amounts allocable to principal on such Mortgage
Loan (or Serviced Loan Group, as the case may be) 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 Serviced Loan Group, as the case may be) or related REO
Mortgage Loan, in each case, during any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL, Class A-MA,
Class A-J, Class A-JFL, Class A-JA, 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 aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period; and (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments) and any other
collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received
on or in respect of the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans that represents a delinquent amount as to
which an Advance had been made, which Advance or interest thereon was
previously reimbursed during the Collection Period for a prior
Distribution Date as part of a Workout-Delayed Reimbursement Amount for
which a deduction was made under clause (II)(A) below with respect to such
Distribution Date (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount related to the Loan
Group that does not include such Mortgage Loan, and then to the Loan Group
Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan); and
(C) the aggregate amount of any collections identified and applied
by the applicable Master Servicer as recoveries of principal and received
on or in respect of the Mortgage Loans during the related Collection
Period that, in each case, represents a recovery of an amount previously
determined (in a Collection Period for a prior Distribution Date) to have
been a Nonrecoverable Advance and for which a deduction was made under
clause (II)(B) below with respect to a prior Distribution Date (with
respect to each such Mortgage Loan, allocated first to the Loan Group
Principal Distribution Amount related to the Loan Group that does not
include such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such Mortgage
Loan), and which are applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that was reimbursed or paid during the
related Collection Period to one or more of the applicable Master
Servicer, the applicable Special Servicer and the Trustee from principal
collections on the Mortgage Loans pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances that was
reimbursed or paid during the related Collection Period to one or more of
the applicable Master Servicer, the applicable Special Servicer and the
Trustee during the related Collection Period from principal collections on
the Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II).
For purposes of the definition of "Principal Distribution Amount,"
the Scheduled Payments and Principal Prepayments referred to in the proviso in
Section 5.2(b) shall be deemed to have been collected in the prior Collection
Period.
"Principal Prepayment" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan (or Serviced Loan Group, as
applicable) which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan (or Serviced
Loan Group, as the case may be) 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 November 15, 2007, pursuant to which the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates
will be offered for sale.
"Prohibited Party" means a party that is a proposed Servicing
Function Participant that a Master Servicer, a Special Servicer or the Trustee,
as applicable, seeks to retain as a Servicing Function Participant and as to
which the Master Servicers, the Special Servicers or the Trustee, as applicable,
has actual knowledge that such proposed party on any prior date failed to comply
with its Exchange Act or Regulation AB obligations with respect to the Subject
Securitization Transaction or any other commercial mortgage securitization. In
addition, a Prohibited Party shall be any Person identified in writing
(delivered prior to the date of retention) by the Depositor to the Master
Servicers, the Special Servicers or the Trustee, as applicable, that seeks to
retain such Person as a Person regarding which the Depositor has knowledge that
such party on any prior date failed to comply with its Exchange Act or
Regulation AB obligations with respect to the Subject Securitization Transaction
or any other commercial mortgage securitization.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the determination of fair value of an REO Mortgage
Loan with respect to a liquidation by a Special Servicer pursuant to Section
9.15 or (iii) the determination of fair value of a Mortgage Loan (or Serviced
Loan Group, as applicable) in connection with a purchase by the Option Holder
pursuant to Section 9.36 under the circumstances described therein, a price
equal to the sum of (A) 100% of the unpaid Principal Balance of such Mortgage
Loan (or Serviced Loan Group, as the case may be) (or, in each case, deemed
Principal Balance, in the case of an REO Mortgage Loan), plus (B) accrued but
unpaid interest thereon calculated at the Mortgage Rate to and including, the
Due Date in the Collection Period in which such purchase or liquidation occurs,
plus (C) the amount of any expenses related to such Mortgage Loan (or Serviced
Loan Group, as the case may be) or the related REO Property (including any
Servicing Advances and Advance Interest (which have not been paid by the
Mortgagor or out of Late Fees or default interest paid by the related Mortgagor
on the related Mortgage Loan (or Serviced Loan Group, as the case may be)) and
all unpaid Special Servicing Fees and Liquidation Fees paid or payable with
respect to the Mortgage Loan (or Serviced Loan Group, as the case may be) that
are reimbursable or payable to the applicable Master Servicer, the applicable
Special Servicer, the Paying Agent, the Trustee or the related Other Master
Servicer, the related Other Special Servicer, the related Other Trustee or the
related Other Paying Agent, plus (D) if such Mortgage Loan or REO Mortgage Loan
is being repurchased or substituted for by a Seller pursuant to the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Primary Servicer, the applicable Master Servicer, the applicable
Special Servicer, the Depositor, 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).
"Purchase Proceeds" means any cash amounts received by the
applicable Master Servicer in connection with: (i) the repurchase of a Mortgage
Loan or an REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the
purchase by the Option Holder of a Mortgage Loan pursuant to Section 9.36; (iii)
the purchase of the Mortgage Loans and REO Properties by the Depositor, the
applicable Master Servicer, the applicable Special Servicer or the holders of
the Class R-I Certificates pursuant to Section 10.1(b); (iv) if applicable, the
purchase of a Senior Mortgage Loan by the holder of a related Serviced Companion
Loan, or (v) if applicable, the purchase of a Mortgage Loan by a holder of a
mezzanine loan under the related mezzanine intercreditor agreement.
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan (or
Serviced Loan Group, as applicable), an insurance company duly qualified as such
under the laws of the state in which the related Mortgaged Property is located,
duly authorized and licensed in such state to transact the applicable insurance
business and to write the insurance, but in no event rated lower than "A" by
Fitch, or if not so rated by Fitch, then Fitch has issued a Rating Agency
Confirmation, "A" by S&P, or if not so rated by S&P, then S&P has issued a
Rating Agency Confirmation, and "A" by DBRS or if not rated by DBRS, then (a) at
least A:IX by A.M. Best's Key Rating Guide, (b) an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x),
or (c) DBRS has issued a Rating Agency Confirmation, and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability no lower than "A" by S&P if
rated by S&P, or if not so rated by S&P, then S&P has issued a Rating Agency
Confirmation, "A" by Fitch (or if such company is not rated by Fitch, is rated
at least A:IX by A.M. Best's Key Rating Guide) and "A" by DBRS, or if not rated
by DBRS, then (a) at least A:IX by A.M. Best's Key Rating Guide, (b) an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x) or (c) DBRS has issued a Rating Agency Confirmation, or
(iii) in either case, a company not satisfying clause (i) or (ii) but with
respect to which Rating Agency Confirmation is obtained from Fitch, S&P and
DBRS. "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 on such
Mortgage Loan at the Mortgage Rate on the Deleted Mortgage Loan from the Due
Date as to which interest was last paid up to the Due Date in the Collection
Period in which such substitution occurs, shall be paid by the party effecting
such substitution to the applicable Master Servicer for deposit into the
applicable Certificate Account, and shall be treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate of interest at least equal to
that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (iv) has (A) an original Loan-to-Value Ratio not higher than the
lesser of (x) the current Loan-to-Value Ratio of the Deleted Mortgage Loan and
(y) 75.0% and (B) has a current Debt Service Coverage Ratio equal to the greater
of (x) the current Debt Service Coverage Ratio of the Deleted Mortgage Loan and
(y) 1.25x; (v) will comply with all of the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of substitution;
(vi) has a Phase I Environmental Report relating to the related Mortgaged
Property in the related Mortgage File and such Phase I Environmental Report does
not, in the good faith reasonable judgment of the applicable Special Servicer,
exercised in a manner consistent with the Servicing Standard, raise material
issues that have not been adequately addressed; (vii) has an engineering report
relating to the related Mortgaged Property in its Mortgage Files and such
engineering report does not, in the good faith reasonable judgment of the
applicable Special Servicer, exercised in a manner consistent with the Servicing
Standard, raise material issues that have not been adequately addressed; (viii)
is secured by a residential cooperative property if the Mortgage Loan
substituted for a Deleted Mortgage Loan is a Co-op Mortgage Loan; and (ix) as to
which the Trustee 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 Final Rated Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
Rating Agency Confirmation is obtained, and provided, further, that no such
Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (i) above and the remaining
term to stated maturity referred to in clause (ii) above shall be determined on
a weighted average basis; provided, however, that no individual interest rate,
minus the Administrative Cost Rate, shall be lower than the highest Pass-Through
Rate of any Class of Principal Balance Certificates then outstanding having a
fixed rate. Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Trustee, which shall
deliver a copy of such certification to the Master Servicers, the Special
Servicers, the Paying Agent and the Operating Adviser promptly, and in any event
within five Business Days following the Trustee's receipt of such certification.
"Rating Agencies" means Fitch, S&P and DBRS.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency;
provided that, with respect to any matter affecting a Serviced Companion 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 Fitch or "A" by DBRS, or if
the Swap Counterparty's guarantor's short-term rating is not at least "A-1" by
S&P, or if it does not have a short-term rating by S&P, its long-term rating is
not at least "A" by S&P.
"RBC" has the meaning assigned in the Preliminary Statement hereto.
"RBC Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"RBC Trust Assets" means the RBC Loans, any REO Properties acquired
by the Trust with respect to the RBC Loans and any and all other related assets
of the Trust.
"Realized Interest Loss" means, with respect to each Mortgage Loan
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
Realized Losses on a Mortgage Loan are allocated first to the Principal Balance
of, and then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
"Record Date" means, for each Distribution Date, (i) with respect to
each Class of Certificates other than the Floating Rate Certificates, the close
of business on the last Business Day of the month immediately preceding the
month in which such Distribution Date occurs and (ii) with respect to the
Floating Rate Certificates, subject to Section 6.12, the Business Day
immediately preceding the related Distribution Date.
"Recoveries" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan (or Serviced Loan Group, as
applicable) or REO Property following the period in which a Final Recovery
Determination occurs plus other amounts defined as "Recoveries" herein.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan (or Serviced Loan Group, as
applicable) that was modified, based on the modified terms), or a complete
defeasance shall have occurred, (ii) no other Servicing Transfer Event has
occurred and is continuing (or with respect to determining whether a Required
Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal
Reductions, no other Appraisal Event has occurred and is continuing) and (iii)
one of the following statements is true with respect to any cost incurred as a
result of the occurrence of the Servicing Transfer Event: (a) the cost has been
reimbursed to the Trust, (b) the Mortgagor's obligation to pay the cost has been
forgiven, (c) the Mortgagor has agreed in writing to reimburse such costs or (d)
the cost represents an amount that has been the subject of an Advance made with
respect to the Mortgage Loan following default, the mortgage loan has been
worked out under terms that do not provide for the repayment of such Advance in
full upon the execution of the workout arrangement but the Mortgagor is
nonetheless obligated under the terms of the workout arrangement to reimburse
such Advance in the future. Neither the related Senior Mortgage Loan nor
Serviced Companion Loan will constitute a Rehabilitated Mortgage Loan unless the
entire related Serviced Loan Group constitutes 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
Servicers, the Special Servicers, any Primary Servicer, the Paying Agent and the
Trustee, on Schedule XVI attached hereto). For clarification purposes, multiple
Reporting Servicers can have responsibility for the same Relevant Servicing
Criteria and some of the Servicing Criteria will not be applicable to certain
Reporting Servicers. With respect to a Servicing Function Participant engaged by
the Trustee, the Paying Agent, the Master Servicers, the Special Servicers, any
Primary Servicer or any Reporting Sub-Servicer, the term "Relevant Servicing
Criteria" may refer to a portion of the Relevant Servicing Criteria applicable
to the Trustee, the Paying Agent, the Master Servicers, the Special Servicers,
any Primary Servicer or such Reporting Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans other than any Excess Interest payable thereon, such amounts
related thereto as shall from time to time be held in the Certificate Accounts,
the Interest Reserve Account, the Reserve Account and the Distribution Account
(other than the portion thereof constituting the Excess Interest Sub-account or
funds held with respect to REMIC II, REMIC III or the Floating Rate Accounts),
the related Insurance Policies (other than the interest of the holder of a
Serviced Companion Loan therein) and any related REO Properties (other than the
interest of the holder of a Serviced Companion Loan therein), for which a REMIC
election has been made pursuant to Section 12.1(a) hereof. None of the Serviced
Companion Loans or the Non-Trust Serviced Companion Loans 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 and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
the Mortgage Rate thereof (without taking into account any increase therein
after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate), as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date).
"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 has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-7" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-8" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-9" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-JA" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-JFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-MA" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-MFL" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular
Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC II Regular Interest
A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular Interest A-1A-5,
REMIC II Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II
Regular Interest A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II Regular
Interest A-2-1, REMIC II Regular Interest A-2-2, REMIC II Regular Interest
A-3-1, REMIC II Regular Interest A-3-2, REMIC II Regular Interest A-4-1, REMIC
II Regular Interest A-4-2, REMIC II Regular Interest A-4-3, REMIC II Regular
Interest A-4-4, REMIC II Regular Interest A-4-5, REMIC II Regular Interest
A-4-6, REMIC II Regular Interest A-M, REMIC II Regular Interest A-MFL, REMIC II
Regular Interest A-MA, REMIC II Regular Interest A-J, REMIC II Regular Interest
A-JFL, REMIC II Regular Interest A-JA, REMIC II Regular Interest B, REMIC II
Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest
D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E-1, REMIC II
Regular Interest E-2, REMIC II Regular Interest F, REMIC II Regular Interest
G-1, REMIC II Regular Interest G-2, REMIC II Regular Interest H-1, REMIC II
Regular Interest H-2, REMIC II Regular Interest J, REMIC II Regular Interest
K-1, REMIC II Regular Interest K-2, REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O,
REMIC II Regular Interest P, REMIC II Regular Interest Q and 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 has been made pursuant to Section 12.1(a) hereof.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MA, Class A-J,
Class A-JA, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the applicable Master
Servicer or the applicable 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 (other than REO
Property that was security for a Serviced Loan Group), except as set forth
below, all income received in connection with such REO Property during such
period less any operating expenses, utilities, real estate taxes, management
fees, insurance premiums, expenses for maintenance and repairs and any other
capital expenses directly related to such REO Property paid during such period.
With respect to REO Property that was security for a Serviced Loan Group, only
the portion of such amounts payable to the holder of the related Senior Mortgage
Loan shall be included in REO Income. With respect to a Non-Trust Serviced Loan
Group (if the related Other Special Servicer has foreclosed upon the mortgaged
properties securing the related Non-Trust Serviced Pari Passu Loan), the REO
Income includes only the portion of such net income that is paid to the holder
of the related Non-Trust Serviced Pari Passu Loan pursuant to the related Other
Pooling and Servicing Agreement.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Mortgage Loan (or Serviced Loan
Group, as applicable) has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"Report Date" means the second Business Day before the related
Distribution Date.
"Reporting Servicer" means the Master Servicers, the Special
Servicers, any Primary Servicer, each Reporting Sub-Servicer, the Trustee, the
Paying Agent and any Additional Servicer, as the case may be.
"Reporting Sub-Servicer" means any Person that (i) is a Servicing
Function Participant, (ii) Services the assets of the Trust on behalf of (a) the
Trust, (b) the Trustee, (c) the Paying Agent, (d) the Master Servicers, (e) the
Special Servicers, (f) any Additional Servicer or (g) any other Person that
otherwise constitutes a "Sub-Servicer," and (iii) is responsible for the
performance (whether directly or through sub-servicers or Subcontractors) of
Servicing functions that are required to be performed by the Trustee, the Paying
Agent, the Master Servicers, the Special Servicers or any Additional Servicer
under this Agreement or any sub-servicing agreement and are identified in Item
1122(d) of Regulation AB. For clarification purposes, any Primary Servicer is a
Reporting Sub-Servicer.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (other than a
Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) as
to which an Appraisal Event has occurred. A Mortgage Loan (other than a
Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) will
cease to be a Required Appraisal Loan at such time as it is a Rehabilitated
Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I Certificates; with respect to REMIC II, the Class R-II Certificates; and
with respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, Paying Agent or Custodian, any officer of Trustee, Paying Agent or
Custodian, as the case may be, with specific responsibilities for the matters
contemplated by this Agreement and when used with respect to any successor
Trustee, Paying Agent or Custodian, 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, the Paying Agent or
the Custodian, as the case may be.
"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to the Class S, Class
Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, then to the
Class A-J Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, pro rata, and then to the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, and finally to the
Class X-1, Class X-2, Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates, on a pro rata basis, as described herein.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in Section
13.6.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan (or Serviced Loan Group, as applicable)
required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note (excluding all amounts of principal and
interest which were due on or before the Cut-Off Date, whenever received, and
taking account of any modifications thereof and the effects of any Debt Service
Reduction Amounts and Deficient Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan (or Serviced Loan Group, as applicable) or any REO Mortgage Loan, for
purposes of performing calculations with respect to any Distribution Date, the
Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan (or Serviced Loan
Group, as the case may be) or such REO Mortgage Loan.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Seller" means MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide and
NatCity, as the case may be.
"Seller Sub-Servicer": A Sub-Servicer or Additional Servicer
required to be retained by a Master Servicer or a Special Servicer, as
applicable, by a Seller, as listed on Schedule XX hereto.
"Senior Mortgage Loan" means a Mortgage Loan in a Serviced Loan
Group.
"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.
"Serviced Companion Loan" means any pari passu note or subordinate
note other than the Mortgage Loan that evidences the related Serviced Loan
Group.
"Serviced Companion Loan Custodial Account" means the custodial
sub-account of the Certificate Account (but which is not included in the Trust)
created and maintained by the applicable Master Servicer pursuant to Section
5.1(c) on behalf of the holder(s) of each Serviced Companion Loan. The Serviced
Companion Loan Custodial Account shall be maintained as a sub-account of an
Eligible Account.
"Serviced Loan Group" means, with respect to a mortgage loan that is
evidenced by more than one note, the entire mortgage loan, including the related
Mortgage Loan and the other pari passu notes or subordinate notes, other than a
Non-Trust Serviced Loan Group. A Serviced Loan Group consists of the related
Senior Mortgage Loan and the Serviced Companion Loan(s).
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by each Master Servicer, each Special Servicer, 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 each Master
Servicer, each Special Servicer, the Trustee 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 a Master Servicer's, a Special Servicer's, the Trustee's or the
Paying Agent's, as the case may be, officers or employees and is maintained in
accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans other than the MSMCH Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMCH Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the applicable Master Servicer by the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicers, the Special Servicers or the Trustee, as the case may be, designated
as a Servicing Advance pursuant to this Agreement and any other costs and
expenses incurred by or for such Master Servicer, such Special Servicer or the
Trustee, as the case may be, to protect and preserve the security for a Mortgage
Loan (other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group,
as applicable).
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person, other than the
Master Servicers, the Special Servicers, the Trustee and the Paying Agent 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) or the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Paying Agent has assumed responsibility for such activities, as provided for
under Regulation AB. For clarification purposes, each Primary Servicer is a
Servicing Function Participant.
"Servicing Officer" means, any officer or employee of the Master
Servicers or Special Servicers involved in, or responsible for, the
administration and servicing of the Mortgage Loans (or Serviced Loan Group, as
applicable) or this Agreement and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's or
employee's knowledge of and familiarity with the particular subject, and, in the
case of any certification required to be signed by a Servicing Officer, such an
officer or employee whose name and specimen signature appears on a list of
servicing officers furnished to the Trustee by the Master Servicers or the
Special Servicers, as applicable, as such list may from time to time be amended.
"Servicing Standard" means the standard by which the Master
Servicers and Special Servicers will service and administer the Mortgage Loans
(or Serviced Loan Groups, as applicable) and/or REO Properties that it is
obligated to service and administer on behalf of the Trustee in the best
interests and for the benefit of the Certificateholders (or, with respect to a
Serviced Loan Group, for the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole, but with respect to the Serviced
Loan Groups, taking into account the subordinate nature of the Serviced
Companion Loans that are subordinate notes, if any) (as determined by the
applicable Master Servicer or the applicable Special Servicer, as applicable, in
its good faith and reasonable judgment), in accordance with applicable law, the
terms of this Agreement, and the terms of the respective subject Mortgage Loans
(or Serviced Loan Group, as applicable) and the Co-Lender Agreement (if
applicable) and, to the extent consistent with the foregoing, further as
follows:
(i) with the same skill, care and diligence as is normal and usual
in its general mortgage servicing activities on behalf of third parties or
on behalf of itself, whichever is higher, and in the case of a Special
Servicer, its REO Property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to
mortgage loans that are comparable to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans (or Serviced Loan
Groups, as applicable) and, in the case of a Special Servicer, if a
serviced Mortgage Loan (or Serviced Loan Group, as applicable) comes into
and continues in default, and if, in the judgment of such Special
Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments, the maximization of the recovery of principal and
interest on that Mortgage Loan (or Serviced Loan Group, as the case may
be) to the Certificateholders, as a collective whole (or, in the case of a
Serviced Loan Group, the maximization of recovery of principal and
interest thereon to the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole), on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders will be performed at the rate
determined by such 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 Senior Mortgage Loan or Serviced Companion Loan) or (ii)
the weighted average of the mortgage rates on the related Senior Mortgage
Loan and Serviced Companion Loan, in the case of any Serviced Loan Group);
but without regard to: (I) any relationship that a Master Servicer or a 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 a Serviced
Companion Loan or mezzanine loan, as applicable) by a Master Servicer or a
Special Servicer, as the case may be, or any Affiliate thereof; (III) a Master
Servicer's obligation to make P&I Advances or Servicing Advances; (IV) a Special
Servicer's obligation to request that a Master Servicer make Servicing Advances;
(V) the right of a Master Servicer (or any Affiliate thereof) or a Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it
under this Agreement or with respect to any particular transaction, and (VI)
other than with respect to the Capmark Master Servicer, any obligation of a
Master Servicer or any of its Affiliates (in their capacity as a Seller, if
applicable) to cure a breach of representation or warranty or repurchase a
Mortgage Loan.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
(other than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as
applicable) (x) at its Maturity Date (except if (a) the Mortgagor is making its
Assumed Scheduled Payments, (b) the Mortgagor notifies the applicable Master
Servicer (who shall forward such notice to the other Master Servicer, the
applicable Special Servicer and the Operating Adviser) of its intent to
refinance such Mortgage Loan (or Serviced Loan Group, as the case may be) 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 by the Master Servicer with the
consent of the Operating Adviser) or (y) if any other payment is more than 60
days past due or has not been made on or before the second Due Date following
the date such payment was due; (ii) any Mortgage Loan (other than a Non-Trust
Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable) as to which,
to the applicable Master Servicer's or the applicable Special Servicer's
knowledge, the Mortgagor has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
Mortgagor or to all or substantially all of its property, or the Mortgagor has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged,
undismissed or unstayed for a period of 30 days; (iii) any Mortgage Loan (other
than a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as the case
may be) as to which the applicable Master Servicer or the applicable Special
Servicer shall have received notice of the foreclosure or proposed foreclosure
of any other lien on the Mortgaged Property; (iv) any Mortgage Loan (other than
a Non-Trust Serviced Pari Passu Loan) (or Serviced Loan Group, as the case may
be) as to which the applicable Master Servicer or the applicable Special
Servicer has knowledge of a default (other than a failure by the related
Mortgagor to pay principal or interest) which in the good faith reasonable
judgment of such Master Servicer or such Special Servicer materially and
adversely affects the interests of the Certificateholders (or the holder of a
Serviced Companion Loan) 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 (or Serviced Loan Group, as the
case may be) 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) (A) any Mortgage Loan (other than a NCB, FSB Loan or Non-Trust Serviced
Pari Passu Loan) (or Serviced Loan Group, as the case may be) as to which, in
the good faith reasonable judgment (in accordance with the Servicing Standard)
of the applicable Master Servicer or the applicable Special Servicer, (a) 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 such Master Servicer or Special Servicer, is reasonably
likely to materially and adversely affect the interests of the
Certificateholders or the holders of any related Serviced Companion Loan or (B)
with respect to a NCB, FSB Loan (or Serviced Loan Group, if applicable) as to
which, in the good faith reasonable judgment (in accordance with the Servicing
Standard) of the applicable Master Servicer or Special Servicer, (a) a payment
default is imminent or is reasonably foreseeable (except to the extent that, in
the good faith reasonable judgment (in accordance with the Servicing Standard)
of such Master Servicer or Special Servicer, such imminent or reasonably
foreseeable default is likely to be cured within the periods described in clause
(i) above) or (b) any other default is imminent or is reasonably foreseeable and
such default, in the judgment of such Master Servicer or Special Servicer, is
reasonably likely to materially and adversely affect the interests of the
Certificateholders. If a Servicing Transfer Event occurs with respect to a
Senior Mortgage Loan, it shall be deemed to have occurred also with respect to
the related Serviced Companion Loan. If a Servicing Transfer Event occurs with
respect to a Serviced Companion Loan, it shall be deemed to have occurred also
with respect to the related Senior Mortgage Loan.
"Significant Mortgage Loan" means a Mortgage Loan which has a
Principal Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 5% of the Aggregate Certificate
Balance or exceeds $35,000,000 or is one of the then current top 10 loans (by
Principal Balance) in the Mortgage Pool.
"Significant Obligor" means a "significant obligor" as defined in
Regulation AB. As of the date hereof, there is no Significant Obligor.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with Affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X-1, Class X-2, Class L, Class M, Class N, Class O, Class P,
Class Q, Class S and Class EI Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL, Class A-MA,
Class A-J, Class A-JFL, Class A-JA, 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 (a) with respect to any Mortgage Loan other
than the Co-op Mortgage Loans and the Non-Trust Serviced Pari Passu Loans, any
REO Property acquired by the Trust with respect to such Mortgage Loan and any
matters relating to the foregoing, the General Special Servicer; and (b) with
respect to any Co-op Mortgage Loan, any REO Property acquired by the Trust with
respect to such Co-op Mortgage Loan and any matters relating to the foregoing,
the Co-op Special Servicer.
"Special Servicer Compensation" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to a Special Servicer
pursuant to the terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to each
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan) (or Serviced
Companion Loan, if applicable) that is a Specially Serviced Mortgage Loan
(including REO Mortgage Loans), the fraction or portion of the Special Servicing
Fee Rate applicable to such month (determined using the same interest accrual
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan (or Serviced Companion Loan, if applicable) 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 a
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 applicable Master Servicer by such Special
Servicer signed by an officer of such Special Servicer, as such list may from
time to time be amended.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan (or Serviced Loan Group, as applicable) with
respect to which a Servicing Transfer Event has occurred and is continuing.
Promptly upon a Mortgage Loan (or Serviced Loan Group, as applicable) becoming a
Specially Serviced Mortgage Loan, the applicable Master Servicer shall be
responsible to deliver to the applicable Special Servicer all information,
documents and records relating to such Mortgage Loan (or Serviced Loan Group, as
the case may be), as reasonably requested by such Special Servicer to enable it
to assume its duties with respect to such Mortgage Loan (or Serviced Loan Group,
as the case may be). A Specially Serviced Mortgage Loan shall cease to be a
Specially Serviced Mortgage Loan from and after the date on which the applicable
Special Servicer notifies the applicable Master Servicer, the Operating Adviser,
the Paying Agent and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan (or Serviced Loan Group, as the case may be), with respect to such
Servicing Transfer Event, has become a Rehabilitated Mortgage Loan, unless and
until such Master Servicer notifies such 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 (or Serviced Loan Group, as the case
may be) exists or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"Sub-Servicer" has the meaning set forth in Section 8.4(b).
"Sub-Servicing Agreement" means a Sub-Servicing Agreement, or any
other agreement between a Master Servicer or Primary Servicer and a
Sub-Servicer, with respect to the servicing, primary servicing or sub-servicing
of one or more Mortgage Loans.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicers, the Special Servicers, an Additional Servicer, a Reporting
Sub-Servicer, the Paying Agent or the Trustee.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificates" means, collectively, the Class A-M, Class
A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, 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.
"Subordinate Loan" means, with respect to a Serviced Loan Group, a
related Serviced Companion Loan that is subordinate in priority to the related
Senior Mortgage Loan.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"Swap Agreement" means the ISDA Master Agreement, dated as of
November 29, 2007, between the Swap Counterparty and the Trust, and the Credit
Support Annex and the Schedule (each as defined in the Swap Agreement),
regarding a separate interest rate swap transaction for each of the Class A-MFL
and Class A-JFL Certificates.
"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 Counterparty Collateral Account" has the meaning set forth in
Section 8.31(f).
"Swap Default" means any failure on the part of the Swap
Counterparty to (i) make a required payment under a Swap Transaction, (ii) 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, or (iii) find an
acceptable replacement Swap Counterparty after the Swap Counterparty guarantor's
long-term rating is reduced below "BBB-" by S&P, or if it does not have a
long-term rating by S&P, its short-term rating is not at least "A-3" by S&P, in
each case of clauses (i), (ii) and (iii), as required by the Schedule to the
ISDA Master Agreement.
"Swap Transaction" means, with respect to the Class A-MFL or Class
A-JFL Certificates, an interest rate swap transaction for such Class of Floating
Rate Certificates under the Swap Agreement.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained
with respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" or "Trust Fund" means the trust created pursuant to this
Agreement and designated "Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16," the assets
of which consist of all the assets of REMIC I (including the related Mortgage
Loans (other than Excess Interest thereon), such related amounts as shall from
time to time be held in the Certificate Accounts, the Distribution Account
(other than the Excess Interest Sub-Account), the Interest Reserve Account, the
Reserve Account, the REO Accounts, the Trustee's rights under the Insurance
Policies, any REO Properties (or the Trust's beneficial interest in a Mortgaged
Property acquired under any Other Pooling and Servicing Agreement) and other
items referred to in Section 2.1(a) hereof, in each case to the extent allocable
to the related Mortgage Loan), the REMIC I Regular Interests, the REMIC II
Regular Interests, the Floating Rate Regular Interests, the Swap Transactions,
the Floating Rate Accounts, Excess Interest and the Excess Interest Sub-Account.
The Trust shall not include any Serviced Companion Loan, any interest of the
holder of a Serviced Companion Loan or the Serviced Companion Loan Custodial
Account. The Trust shall not include the Non-Trust Serviced Companion Loans.
"Trustee" means LaSalle Bank National Association, as trustee, or
its successor-in-interest, or if any successor trustee, or any co-trustee shall
be appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month. A portion of the Trustee Fee shall be
payable to the Paying Agent as agreed between the Trustee and the Paying Agent.
"Trustee Fee Rate" means 0.00082% per annum.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"Underwriter" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation, or their respective successors-in-interest.
"United States Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source or (iv) a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States Tax Persons has
the authority to control all substantial decisions of such trust (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to elect to be treated as a United States Tax
Person).
"Unliquidated Advance" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests (including the Floating Rate Regular Interests) or
Certificates (excluding the Residual Certificates, the Floating Rate
Certificates and the Class EI Certificates), the portion of Distributable
Certificate Interest for such Class remaining unpaid as of the close of business
on the preceding Distribution Date, plus one month's interest thereon at the
applicable Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Loss Report, CMSA Loan
Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File, CMSA
Collateral Summary File, CMSA Reconciliation of Funds Report, CMSA REO Status
Report, CMSA Loan Level Reserve/LOC Report, CMSA Advance Recovery Report, CMSA
Total Loan Report and, if and to the extent filed with the Commission, such
reports and files as would, but for such filing, constitute Restricted Master
Servicer Reports.
"USAP" has the meaning set forth in Section 13.10 herein.
"Weighted Average 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.
"Xxxxx Fargo Master Servicer" means Xxxxx Fargo Bank, National
Association, and its permitted successors or assigns.
"WHFIT" has the meaning set forth in Section 12.5.
"WHFIT Regulations" has the meaning set forth in Section 12.5.
"Whole Loan" means a Serviced Loan Group or Non-Trust Serviced Loan
Group, as applicable.
"Work-Out Fee" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan), equal to the
product of (x) 1.00% and (y) the amount of each collection of interest (other
than default interest and Excess Interest) and principal received (including any
Condemnation Proceeds received and applied as a collection of such interest and
principal) on such Mortgage Loan (or Serviced Loan Group, as applicable) so long
as it remains a Rehabilitated Mortgage Loan or otherwise payable as set forth in
Section 9.21(d).
"Workout-Delayed Reimbursement Amount" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in connection with
any Principal Prepayment thereon or other early collection of principal thereof,
any specified amount or specified percentage of the amount prepaid which
constitutes the minimum amount that such Yield Maintenance Charge may be.
Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Paying Agent pursuant to
this Agreement with respect to any Mortgage Loan (or Serviced Loan Group, as
applicable) shall be made based upon current information as to the terms of such
Mortgage Loan (or Serviced Loan Group, as the case may be) and reports of
payments received from the applicable Master Servicer on such Mortgage Loan (or
Serviced Loan Group, as the case may be) and payments to be made to the Paying
Agent as supplied to the Paying Agent by such Master Servicer. The Paying Agent
shall not be required to recompute, verify or recalculate the information
supplied to it by the applicable Master Servicer and may conclusively rely upon
such information in making such calculations. If, however, a Responsible Officer
of the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the applicable Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents (or with respect to a Serviced Loan Group, the related Co-Lender
Agreement), any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan (or Serviced Companion Loan, as applicable) as to which a default
has occurred and is continuing (other than Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, Purchase Proceeds and REO Income) shall be
applied as follows: first, to overdue interest due with respect to such Mortgage
Loan (or Serviced Companion Loan, as the case may be) at the Mortgage Rate
thereof, second, to current interest due with respect to such Mortgage Loan (or
Serviced Companion Loan, as the case may be) at the Mortgage Rate thereof,
third, to the reduction of the Principal Balance of such Mortgage Loan (or
Serviced Companion Loan, as the case may be) to zero if such Mortgage Loan (or
Serviced Companion Loan, as the case may be) has been accelerated, and in
respect of any scheduled payments of principal then due to the extent that such
Mortgage Loan (or Serviced Companion Loan, as the case may be) has not yet been
accelerated, fourth, to any default interest and other amounts due on such
Mortgage Loan (or Serviced Companion Loan, as the case may be) and fifth, to
Late Fees due with respect to such Mortgage Loan (or Serviced Companion Loan, as
the case may be). The foregoing allocations are intended to govern loan level
allocations but shall not govern allocations of such amounts at the trust level
for the purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses, fourth, as a recovery of
any Nonrecoverable Advances thereon, except with respect to any Unliquidated
Advance previously reimbursed from principal pursuant to Section 5.2(a)(II)(iv);
fifth, as a recovery of any remaining accrued and unpaid interest on such
Mortgage Loan (or Serviced Companion Loan) at the related Mortgage Rate to, but
not including, the date of receipt (or, in the case of a full monthly payment
from any Mortgagor, through the related Due Date); sixth, as a recovery of any
remaining principal of such Mortgage Loan (or Serviced Companion Loan) then due
and owing, including by reason of acceleration of the Mortgage Loan (or Serviced
Companion Loan) following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan (or Serviced Companion Loan), as a
recovery of principal to the extent of its entire remaining unpaid Principal
Balance); seventh, unless a Liquidation Event has occurred with respect to such
Mortgage Loan (or Serviced Companion Loan), as a recovery of amounts to be
currently applied to the payment of real estate taxes, assessments, insurance
premiums (including premiums on any Environmental Insurance Policy), ground
rents (if applicable) and similar items; eighth, as a recovery of any Late Fees
and default interest then due and owing under such Mortgage Loan (or Serviced
Companion Loan); ninth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan (or Serviced
Companion Loan); tenth, as a recovery of any assumption fees, Modification Fees
and extension fees then due and owing under such Mortgage Loan (or Serviced
Companion Loan); and eleventh, as a recovery of any other amounts then due and
owing under such Mortgage Loan (or Serviced Companion Loan).
(c) Notwithstanding the foregoing applications of amounts received
by or on behalf of the Trust in respect of any Mortgage Loan (or Serviced
Companion Loan), any amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) (or, with
respect to a Serviced Companion Loan, any amounts due and owing under the
related mortgage note and mortgage, excluding amounts for principal and accrued
and unpaid interest) shall be applied in accordance with the express provisions
of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate (other than the Floating Rate
Certificates) and on the Floating Rate Regular Interests 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 Floating Rate 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 on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of such Master Servicer and such Special Servicer, as the
case may be, the Liquidation Proceeds expected to be recovered in connection
with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to each ARD Loan after its Anticipated Repayment
Date, the respective Master Servicer or respective 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 respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 8.18 and Section 9.5 hereof. The respective Master Servicer or the
respective Special Servicer, as the case may be, will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is based on such criteria.
Section 1.6 Certain Matters with Respect to the Serviced Loan Groups
(a) The parties hereto acknowledge that, pursuant to the related
Co-Lender Agreement, if any Senior Mortgage Loan is no longer part of the Trust
or is no longer serviced pursuant to the terms of this Agreement, the holder of
such Senior Mortgage Loan shall negotiate one or more new servicing agreements
with the applicable Master Servicer and the applicable Special Servicer;
provided that, prior to entering into any such new servicing agreement, the new
holder of such Senior Mortgage Loan shall obtain and provide to the holder of
the related Serviced Companion Loan, Rating Agency Confirmation and written
confirmation from each rating agency then rating any securitization relating to
the related Serviced Companion Loan 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.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the applicable
Master Servicer and the applicable Special Servicer under Article VIII and
Article IX and the obligation of the applicable Master Servicer to make
Advances, insofar as such rights, duties and obligations relate to the Serviced
Loan Group, shall terminate upon the earliest to occur of the following with
respect to the Serviced Loan Group: (i) any repurchase of or substitution for
the related Senior Mortgage Loan by the applicable Seller pursuant to Section
2.3 and (ii) any payment in full of any and all amounts due (or deemed due)
under such Senior Mortgage Loan (or its successor REO Mortgage Loan) (including
amounts to which the holder of such Senior Mortgage Loan is entitled under the
related Co-Lender Agreement); provided, however, that this statement shall not
limit (A) the duty of the applicable Master Servicer or the applicable 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 applicable Master Servicer or the applicable Special
Servicer that may otherwise accrue or arise in connection with the performance
of its duties hereunder with respect to a Serviced Loan Group prior to the date
on which such event occurs.
(c) In connection with an event described in clause (ii) of
subsection (b), the Trustee, the Custodian, the applicable Master Servicer and
the applicable Special Servicer shall each tender to the holder of the
applicable Serviced Companion Loan (if then still outstanding), upon delivery to
them of a receipt executed by such holder, all portions of the Mortgage File and
other documents pertaining to such a Serviced Loan Group, 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 Trustee or the Custodian shall be conditioned
upon its receipt from the applicable Master Servicer of a Request for Release.
The applicable Master Servicer shall, and is also hereby authorized and
empowered by the Trustee to, convey to such holder any deposits then held in an
Escrow Account relating to a Serviced Loan Group. If any Serviced Loan Group is
then an REO Mortgage Loan, then the applicable Special Servicer shall, and is
also hereby authorized and empowered by the Trustee to, convey to such holder,
to the extent not needed to pay or reimburse the applicable Master Servicer, the
applicable Special Servicer or the Trustee in accordance with this Agreement,
deposits then held in the REO Account insofar as such funds relate to the
related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the applicable Master Servicer, the applicable Special Servicer, the
Trustee or the Paying Agent, as applicable, 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 or the actual
payment of any REMIC 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 a Serviced Companion Loan and such
holder shall not suffer any adverse consequences as a result of the payment of
such expense.
Section 1.7 Certain Matters Relating to the Non-Trust Serviced Pari
Passu Loans
(a) With respect to a Non-Trust Serviced Pari Passu Loan, in the
event that the applicable Master Servicer or the Trustee receives notice from
any of DBRS, Fitch or S&P that the applicable Master Servicer or the Trustee, as
applicable, is no longer approved by such Rating Agency as to its eligibility
requirements hereunder, the applicable Master Servicer or the Trustee, as
applicable, shall be required to notify each of the other parties to this
Agreement and the related Other Master Servicer of the same.
(b) With respect to a Non-Trust Serviced Pari Passu Loan, in the
event that the Other Pooling and Servicing Agreement that is servicing the
related Non-Trust Serviced Loan Group is terminated, the applicable Master
Servicer (to the extent that its consent is required under the terms of the
related Co-Lender Agreement) shall not consent to any replacement servicing
agreement until the conditions precedent set forth in such Co-Lender Agreement
are satisfied.
(c) The provisions relating to the Non-Trust Serviced Pari Passu
Loans in this Agreement shall not apply to the Xxxxx Fargo Master Servicer,
whose applicable Mortgage Loans do not include any Non-Trust Serviced Pari Passu
Loan.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to the section thereof under
the heading of "Benefit of Mortgage Loan Purchase Agreement," (iii) the
Depositor's rights under each Co-Lender Agreement and each Other Pooling and
Servicing Agreement, (iv) with respect to each Class of Floating Rate
Certificates, the related Swap Transaction, the related Floating Rate Regular
Interest and funds or assets from time to time on deposit in the related
Floating Rate Account, and (v) all other assets included or to be included in
REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date. The Trustee, by the execution and delivery of this Agreement, hereby
agrees that each Senior Mortgage Loan and each Serviced Companion Loan remains
subject to its related Co-Lender Agreement. The transfer and assignment of a
Non-Trust Serviced Pari Passu Loan to the Trustee and the right to service such
Mortgage Loan is subject to the terms and conditions of the related Other
Pooling and Servicing Agreement and the Co-Lender Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the 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 (or, with respect to a Non-Trust Serviced
Pari Passu Loan, copies thereof) within the time period set forth therein. None
of the Trustee, the Paying Agent, the Custodian, any Master Servicer or any
Special Servicer shall be liable for any failure by any Seller or the Depositor
to comply with the document delivery requirements of the Mortgage Loan Purchase
Agreements and this Section 2.1(b). Xxxxx Fargo Bank, National Association shall
act as the initial Custodian hereunder and shall take delivery, hold, examine
and release each Mortgage File in accordance with Sections 2.1, 2.2 and 2.3
hereof.
(c) Each of MSMCH and PCFII shall, at its own expense, for the
Mortgage Loans sold to the Depositor by such Seller, within the time frame set
forth in the related Mortgage Loan Purchase Agreement, and in the case of RBC,
GECC, Nationwide, NatCity and NCB, FSB, the Trustee shall, at the expense of the
related Seller, for the Mortgage Loans sold to the Depositor by such Seller,
promptly (and in any event within 90 days following the receipt of all recording
information necessary to record such document), cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC financing statements, as appropriate, each
assignment to the Trustee referred to in clauses (iv), (vi) and (ix)(B) of the
definition of "Mortgage File" (except with respect to a Non-Trust Serviced Pari
Passu Loan). Each such assignment shall reflect that it should be returned by
the public recording office to the Custodian following recording or filing or
such party responsible for recording such assignment shall be responsible for
forwarding such assignment to the Custodian on behalf of the Trustee (except
with respect to any Mortgage File document recorded in the name of MERS or its
designee); provided that in those instances where the public recording office
retains the original Assignment of Mortgage, assignment of Assignment of Leases
or assignment of UCC financing statements, the Custodian, for all Mortgage Loans
other than the PCFII Loans, and the Primary Servicer for the PCFII Loans, shall
obtain therefrom, at the expense of the applicable Seller, a certified copy of
the recorded original and shall forward copies thereof to the applicable Master
Servicer and the applicable Special Servicer. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Custodian, for all Mortgage Loans other than the PCFII
Loans, and the Primary Servicer for the PCFII Loans, shall promptly notify the
applicable Seller and the applicable Seller for its respective Mortgage Loans
shall promptly prepare or cause to be prepared and delivered to the Custodian a
substitute therefor or cure such defect, as the case may be, and thereafter the
Custodian shall upon receipt thereof from such Seller cause the same to be duly
recorded or filed, as appropriate (or such Seller shall promptly cause such
substitute to be duly recorded or filed).
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Custodian, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements for the PCFII Loans or the applicable exhibit
to the Mortgage Loan Purchase Agreements in favor of the Trustee, the Custodian,
the applicable Master Servicer and the applicable Special Servicer to empower
the Trustee, the Custodian, such Master Servicer and, in the event of the
failure or incapacity of the Trustee, the Custodian and such Master Servicer,
such Special Servicer, to submit for recording, at the expense of the applicable
Seller, any mortgage loan documents required to be recorded as described in the
preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Custodian, the
applicable Master Servicer and the applicable Special Servicer in connection
with any additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The Custodian and each other
party hereto agrees that no such power of attorney shall be used with respect to
any Mortgage Loan by or under authorization by any party hereto except that to
the extent that the absence of a document described in the second preceding
sentence with respect to such Mortgage Loan remains unremedied as of the earlier
of (i) the date that is 180 days following the delivery of notice of such
absence to the related Seller, but in no event earlier than 18 months from the
Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. The 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 servicing of any
Mortgage Loans or Serviced Companion Loan and that are not required to be a part
of a Mortgage File in accordance with the definition thereof and are reasonably
necessary for the ongoing administration and/or servicing of the applicable
Mortgage Loan shall be delivered to the Master Servicer (with a copy to the
related Primary Servicer, if applicable), on or before the date that is 75 days
following the Closing Date and shall be held by such Master Servicer or the
related Primary Servicer on behalf of the Trustee in trust for the benefit of
the Certificateholders. To the extent delivered to the Master Servicer and the
related Sub-Servicer or the related Primary Servicer, as applicable, by the
related Seller, the Servicer Mortgage File will consist of the documents listed
in the definition of Mortgage File; provided, however, the Seller shall not be
required to deliver any draft documents, privileged or other communications,
credit, underwriting, legal or other due diligence, analyses, credit committee
briefs or memoranda or other internal approval documents or drafts or internal
worksheets, memoranda, communications or evaluations, to the extent created for
internal use. Delivery of any of the foregoing documents to the applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the applicable
Master Servicer and satisfy the Depositor's obligations under this Section
2.1(d). Each of the foregoing items may be delivered in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to the applicable Master Servicer. None of any Master Servicer, any
Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, as in full force and
effect on the Closing Date, which Mortgage Loan Purchase Agreements shall
contain the representations and warranties made by the Sellers with respect to
each related Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMCH
Loans from MSMCH, the GECC Loans from GECC, the PCFII Loans from PCFII, the RBC
Loans from RBC, the NCB, FSB Loans from NCB, FSB, the Nationwide Loans from
Nationwide and the NatCity Loans from NatCity. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
MSMCH Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
GECC 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 the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
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. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Note, as described in the definition of Mortgage File) relating to the
RBC 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 the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the NCB, FSB
Loans to the 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 the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the
Nationwide 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 the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
NatCity Loans to the Custodian, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, MSMCH, GECC, PCFII, RBC, NCB, FSB, Nationwide and
NatCity, as applicable, are required under the Mortgage Loan Purchase Agreements
to deliver Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements in blank or naming the Trustee, on
behalf of the Certificateholders, as assignee. Notwithstanding the fact that the
assignments shall be in blank or name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the MSMCH Loans shall be deemed to have been transferred
from MSMCH to the Depositor, the GECC Loans shall be deemed to have been
transferred from GECC to the Depositor, the PCFII Loans shall be deemed to have
been transferred from PCFII to the Depositor, the RBC Loans shall be deemed to
have been transferred from RBC to the Depositor, the NCB, FSB Loans shall be
deemed to have been transferred from NCB, FSB to the Depositor, the Nationwide
Loans shall be deemed to have been transferred from Nationwide to the Depositor,
the NatCity Loans shall be deemed to have been transferred from NatCity to the
Depositor, and all Mortgage Loans shall be deemed to have been transferred from
the Depositor to the Trustee on behalf of the Certificateholders.
With respect to a Non-Trust Serviced Pari Passu Loan, the related
Mortgage File (exclusive, however, of the original Mortgage Note), together with
certain other documents and records, and all unapplied Escrow Payments and
Reserve Funds, in the possession of the Depositor or the related Seller that
relate to such Mortgage Loan has been delivered to the related Other Trustee in
accordance with the related Co-Lender Agreement and the related Other Pooling
and Servicing Agreement. Such documents and funds shall be held thereby on
behalf of the Trustee and the holders of the related Non-Trust Serviced
Companion Loan.
Section 2.2 Acceptance by Trustee
The Custodian on the Trustee's behalf will hold the documents
constituting a part of the Mortgage Files delivered to it, and the Trustee will
hold (i) the REMIC I Regular Interests; (ii) the REMIC II Regular Interests, in
each case, in trust for the use and benefit of all present and future
Certificateholders; (iii) the assets of the Class EI Grantor Trust in trust for
the use and benefit of the present and future Holders of the Class EI
Certificates; and (iv) the Floating Rate Regular Interests and the other assets
of the Floating Rate Grantor Trusts for the use and benefit of all present and
future Holders of the related Class of Floating Rate Certificates. To the extent
that the contents of the Mortgage File for a Senior Mortgage Loan relate to a
related Serviced Companion Loan, the Custodian on the Trustee's behalf shall
also hold such Mortgage File in trust for the benefit of the holder of such
Serviced Companion 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 on the Trustee's behalf shall examine the Mortgage Files in its
possession, and shall deliver to the Depositor, the Sellers, the Master
Servicers, the Special Servicers and the Operating Adviser, a certification (the
"Initial Certification" and the "Final Certification," respectively, in the
respective forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which shall
be in electronic format (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clause (i) of the definition of
Mortgage File are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, and (C)
each Mortgage Note has been endorsed as provided in clause (i) of the definition
of Mortgage File, and (ii) in the case of the Final Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clauses (i), (ii), (iv), (vi), (viii)
and (xii) of the definition of Mortgage File required to be included in the
Mortgage File (to the extent required to be delivered pursuant to this Agreement
and any applicable Primary Servicing Agreement), and with respect to all
documents specified in the other clauses of the definition of Mortgage File to
the extent actually known by a Responsible Officer of the Custodian to be
required pursuant to this Agreement (assuming that, with respect to the
documents referred to in clause (xii) of the definition of Mortgage File, an
original letter of credit in the possession of the Custodian is not so required,
unless a Responsible Officer of the Custodian has actual knowledge to the
contrary), are in its possession, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, (C) based
on its examination and only as to the Mortgage Note and Mortgage or the
appraisal of the related Mortgaged Property, the street address of the Mortgaged
Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File, (D) each Mortgage Note has been endorsed as required by the terms of this
Agreement and (E) the Trustee on behalf of the Trust is shown as the owner of
each Mortgage recorded in the name of MERS. Notwithstanding the foregoing, the
delivery of an original or a copy of a binder, pro forma policy or title
commitment certified by the title company in lieu of the delivery of the actual
Title Insurance Policy shall not be considered a Material Document Defect with
respect to any Mortgage File. The Custodian shall deliver to the Master
Servicers, the Special Servicers, the Operating Adviser and each Seller a copy
of such Final Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Custodian shall provide
a confirmation of receipt of recorded assignments of Mortgage (as described in
the definition of Mortgage File, with evidence of recording thereon) or
otherwise provide evidence of such recordation to the applicable Master
Servicer, the applicable Special Servicer, the Operating Adviser and each
Seller, and if any recorded assignment of Mortgage has not been received by the
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 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 on behalf of the Trustee shall
continuously update such schedule of exceptions to reflect receipt of any
corrected documents, additional documents or instruments or evidences of
recordation and/or filing, as to each Mortgage Loan, until the earliest of the
following dates: (i) the date on which all such exceptions are eliminated (any
such elimination resulting from the fact that recordation and/or filing has been
completed shall be based solely on receipt by the Custodian of the particular
documents showing evidence of the recordation and/or filing), (ii) the date on
which all the affected Mortgage Loans are removed from the Trust and (iii) the
second anniversary of the Closing Date, and shall provide such updated schedule
of exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the applicable Master
Servicer, the applicable Special Servicer, the Operating Adviser, the Paying
Agent and the holder of a Serviced Companion 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, except, with respect to clause (iii) above,
the Custodian shall continue to provide such updated schedule of exceptions
annually after such date). 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 pursuant to Sections
5.4(e) and 5.4(f). Promptly, and in any event within two Business Days,
following any request therefor by the Depositor, the applicable Master Servicer,
the applicable Special Servicer, the Operating Adviser or the holder of a
Serviced Companion Loan, as applicable, that is made later than two years
following the Closing Date, the Custodian 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 pursuant to Section 5.4(e). Upon request, the
applicable Master Servicer shall provide to the Custodian the name and the
address of the holder of each Serviced Companion Loan.
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.
Other than with respect to any original letters of credit relating
to the PCFII Loans, which original letters of credit shall be held by the
Primary Servicer, the Master Servicer agrees to hold all of the original letters
of credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case such defect or
breach either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect," and such a breach described in the preceding
clause (i) or (ii), a "Material Breach") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any
event within three Business Days) upon becoming aware of any such Material
Document Defect or Material Breach, the applicable Master Servicer shall, and
the applicable Special Servicer may, request that the related Seller, not later
than 90 days from such Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but the related
Seller is diligently attempting to effect such correction or cure, as certified
by such Seller in an Officer's Certificate delivered to the Custodian on behalf
of the Trustee, then the cure period will be extended for an additional 90 days
unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan
is at the end of the initial 90 day period a Specially Serviced Mortgage Loan
and a Servicing Transfer Event has occurred as a result of a monetary default or
as described in clause (ii) or clause (v) of the definition of "Servicing
Transfer Event" and (y) the Material Document Defect was identified in a
certification delivered to the Seller by the Custodian on behalf of the Trustee
pursuant to Section 2.2 not less than 90 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein. Notwithstanding anything herein to the contrary, any
breach of the representation and warranty contained under the heading
"Prepayment Premiums" in Exhibit 2 to each Mortgage Loan Purchase Agreement with
respect to any Mortgage Loan shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans at the time of origination, as evidenced by (i) an
opinion of tax counsel to such effect or (ii) a determination by the Internal
Revenue Service that such provision is not customary. In addition, if a Material
Breach exists solely because a Mortgage Loan is not a "qualified mortgage" (as
defined in the Code), then if such Mortgage Loan is modified within 90 days of
the discovery of such breach (and, in any event, within two years of the Closing
Date) so that it becomes a "qualified replacement mortgage" within the meaning
of the Code, such breach shall be deemed cured and the related Seller will not
be obligated to repurchase such Mortgage Loan or otherwise remedy such breach.
The related Seller is required to pay for any expenses incurred by the
applicable Master Servicer or the applicable Special Servicer in connection with
such modification. Notwithstanding the foregoing, with respect to a Non-Trust
Serviced Pari Passu Loan, the applicable Master Servicer and the applicable
Special Servicer shall not enforce the related Mortgage Loan Purchase Agreement
if the related Other Master Servicer or Other Special Servicer shall be entitled
to, and shall be, enforcing such Mortgage Loan Purchase Agreement pursuant to
the related Other Pooling and Servicing Agreement on behalf of such Non-Trust
Serviced Pari Passu Loan and in such event any related Liquidation Fee shall be
payable to the related Other Special Servicer to the extent required by the
related Other Pooling and Servicing Agreement and no Liquidation Fee shall be
payable hereunder. However, with respect to any Material Breach or Material
Document Defect that relates solely to a Non-Trust Serviced Pari Passu Loan and
not to the remainder of its Loan Group, and which is not being enforced by the
related Other Master Servicer or Other Special Servicer, the applicable Master
Servicer shall, and the applicable Special Servicer may, proceed as otherwise
described above or below with respect to the enforcement of the related Mortgage
Loan Purchase Agreement, and the applicable Special Servicer may receive a
Liquidation Fee on the related Liquidation Proceeds to the extent otherwise
permitted hereby. Any expenses incurred by the applicable Master Servicer or
Special Servicer in connection with this Section 2.3(a) shall be considered a
Servicing Advance.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller that is the subject of such Material Breach shall be obligated,
not later than the last day of such permitted cure period, to (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the
applicable Master Servicer shall not execute any instrument effecting the
substitution unless the related Seller has delivered to the 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 such Master Servicer shall be entitled to rely on statements and
certifications from the Custodian for this purpose. If the Mortgage related to
the Qualifying Substitute Mortgage Loan has been recorded in the name of MERS or
its designee, the applicable Master Servicer shall use commercially reasonable
efforts (and the Custodian shall cooperate with such efforts of such Master
Servicer) to reflect the release of such Mortgage on the records of MERS. No
substitution may be made in any calendar month after the Determination Date for
such month. Monthly payments due with respect to Qualifying Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust and will be
retained by the applicable Master Servicer and remitted by such Master Servicer
to the related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the Scheduled
Payment due on the related Deleted Mortgage Loan for such month and thereafter
the related Seller shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and the substitution of the Qualifying Substitute Mortgage Loan or Loans and
upon such amendment such Master Servicer shall deliver or cause to be delivered
such amended Mortgage Loan Schedule to the Custodian, the Paying Agent and the
applicable Special Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects. Upon receipt of the 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 on the Trustee's behalf (and the Depositor, if necessary) shall
execute and deliver such instruments of transfer or assignment in the form
presented to it, in each case without recourse, representation or warranty, as
shall be necessary to vest title (to the extent that such title was transferred
to the Trustee or the Depositor) in the related Seller or its designee to any
Deleted Mortgage Loan (including any property acquired in respect thereof or any
insurance policy proceeds relating thereto) substituted for pursuant to this
Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach
(as the case may be) as to each such other Mortgage Loan for purposes of the
above provisions, and the related Seller shall be obligated to repurchase or
replace each such other Mortgage Loan in accordance with the provisions above
unless, in the case of such breach or document defect, both of the following
conditions would be satisfied if the related Seller were to repurchase or
replace only those Mortgage Loans as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph (the "Affected
Loan(s)"): (1) the debt service coverage ratio for all such other Mortgage Loans
(excluding the Affected Loan(s)) for the four calendar quarters immediately
preceding the repurchase or replacement (determined as provided in the
definition of Debt Service Coverage Ratio, except that net cash flow for such
four calendar quarters, rather than year-end, shall be used) is equal to the
greater of (x) the debt service coverage ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (x) the current Loan-to-Value Ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(y) 75%. The determination of the applicable Master Servicer as to whether the
conditions set forth above have been satisfied shall be conclusive and binding
in the absence of manifest error. The applicable Master Servicer will be
entitled to cause to be delivered, or direct the related Seller to (in which
case the related Seller shall) cause to be delivered to such Master Servicer:
(i) an Appraisal of any or all of the related Mortgaged Properties for purposes
of determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the related Seller if the scope and
cost of the Appraisal is approved by the related Seller (such approval not to be
unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such other Mortgage Loan will not result in an Adverse REMIC
Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
IX hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File (or, with respect to a Non-Trust Serviced Pari Passu Loan, a copy
thereof). If any of the foregoing Material Document Defects is discovered by the
Custodian (or the Trustee if there is no Custodian) or any other party hereto,
the Custodian on behalf of the Trustee (or as set forth in Section 2.3(a), the
applicable Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies and the parties
hereto (and, to the extent that any Material Document Defect relates to a Senior
Mortgage Loan, the holder of the related Serviced Companion Loan(s)) and making
demand upon the related Seller for the cure of the document defect or repurchase
or replacement of the related Mortgage Loan.
(b) If the related Seller disputes that a Material Document Defect
or Material Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of this
Agreement, while pursuing the repurchase claim. Each Seller acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such a work-out
shall not constitute a defense to any repurchase claim nor shall such
modification or work-out change the Purchase Price due from the related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon
such Mortgage Loan and sale of the REO Property, to a Person other than the
related Seller shall be without (i) recourse of any kind (either expressed or
implied) by such Person against the related Seller and (ii) representation or
warranty of any kind (either expressed or implied) by the related Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, each Master Servicer or each Special Servicer, as applicable,
shall notify the related Seller of the discovery of the Material Document Defect
or Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement to correct
or cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. If a court of competent jurisdiction issues a
final order that the related Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan or the related Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to Section 9.30
hereof, the related Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the related Seller) and the Purchase Price.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, a Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the related Seller receives notice of a breach or defect
until a final determination has been made, as set forth in the prior paragraph,
as to whether the related Seller is or was obligated to repurchase such related
Mortgage Loan or REO Property or (y) a repurchase by the related Seller of a
Non-Trust Serviced Pari Passu Loan, where the repurchase obligation has been
enforced by the related Other Master Servicer or Other Special Servicer. Subject
to the last two sentences of the first paragraph of Section 2.3(a), upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the related Seller is or was obligated to
repurchase a Mortgage Loan, to collect a Liquidation Fee, if due in accordance
with the definition thereof, based upon the full Purchase Price of the related
Mortgage Loan or REO Property, with such Liquidation Fee payable by the related
Seller or (ii) with respect to a determination that the related Seller is not or
was not obligated to repurchase a Mortgage Loan (or the Trust decides that it
will no longer pursue a claim against the Seller for repurchase), (A) to collect
a Liquidation Fee based upon the Liquidation Proceeds as received upon the
actual sale or liquidation of such Mortgage Loan or REO Property, and (B)
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amounts to be paid from amounts in the Certificate
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date in the Collection
Period in which such substitution occurs, together with the amount of
unreimbursed Servicing Advances, amounts required to be paid to the applicable
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
applicable Master Servicer of such event which notice shall be accompanied by an
Officer's Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the applicable
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Custodian, the applicable
Master Servicer and the applicable Special Servicer shall each tender to the
related Seller, upon delivery to each of them of a receipt executed by such
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it (including, without limitation, all documents
delivered to the Custodian and such Master Servicer pursuant to the related
Mortgage Loan Purchase Agreement), and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the related Seller or its designee in the same manner, and
pursuant to appropriate forms of assignment, substantially similar to the manner
and forms pursuant to which documents were previously assigned to the Trustee,
but in any event, without recourse, representation or warranty; provided that
such tender by the Custodian shall be conditioned upon its receipt from the
applicable Master Servicer of a Request for Release. The applicable Master
Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the applicable Master
Servicer to do so. The applicable Master Servicer shall, and is also hereby
authorized and empowered by the Trustee to, reconvey to the related Seller any
deposits then held in the applicable Escrow Account relating to the Mortgage
Loan being repurchased or substituted for. Each Master Servicer shall indemnify
the Trustee for all costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with any negligent or intentional misuse
of any such powers of attorney by such Master Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee (or the Custodian) on behalf
of the Certificateholders, respecting any Material Document Defect or Material
Breach. The parties hereunder understand that (i) MSMCH, as Seller under
Mortgage Loan Purchase Agreement I, will be providing the remedies with respect
to the MSMCH Loans, (ii) GECC, as Seller under Mortgage Loan Purchase Agreement
II, will be providing the remedies with respect to the GECC Loans, (iii) PCFII,
as Seller under Mortgage Loan Purchase Agreement III, will be the providing
remedies with respect to the PCFII Loans, (iv) RBC, as Seller under Mortgage
Loan Purchase Agreement IV, will be providing the remedies with respect to the
RBC Loans, (v) NatCity, as Seller under Mortgage Loan Purchase Agreement V, will
be providing the remedies with respect to the NatCity Loans, (vi) NCB, FSB, as
Seller under Mortgage Loan Purchase Agreement VI, will be providing the remedies
with respect to the NCB, FSB Loans and (vii) Nationwide, as Seller under
Mortgage Loan Purchase Agreement VII, will be providing the remedies with
respect to the Nationwide Loans, will be providing the remedies with respect to
the Nationwide Loans. No amendment to this Agreement may change in any manner
the obligations of a Seller under the related Mortgage Loan Purchase Agreement
without the consent of such Seller in writing.
(e) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the applicable Master Servicer's consent,
may be such Master Servicer or which, with the applicable Special Servicer's
consent, may be such Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master
Servicers, the Special Servicers, the Trustee (in its capacity as Trustee of the
Trust) and the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, in trust, all the right, title and interest of the Depositor
in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii)
the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets
of REMIC III in exchange for the REMIC Regular Certificates, (iv) the assets of
the Class EI Grantor Trust in exchange for the Class EI Certificates, (v) the
Class A-MFL Regular Interest and the related Swap Transaction in exchange for
the Class A-MFL Certificates, and (vi) the Class A-JFL Regular Interest and the
related Swap Transaction in exchange for the Class A-JFL Certificates.
Section 2.6 Certain Matters Relating to Non-Trust Serviced Pari
Passu Loans
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to a Non-Trust Serviced Pari Passu Loan, each of the document delivery
requirements set forth herein will be satisfied by the delivery by the related
Seller of copies of each such document specified herein (other than the Mortgage
Note (and all intervening endorsements) evidencing such Non-Trust Serviced Pari
Passu Loan, with respect to which the originals shall be required); provided,
the document delivery requirements for the Assignment of Mortgage, any
assignment of Assignment of Leases and any UCC-2 or UCC-3 financing statement
set forth herein will be satisfied by the delivery by such Seller of copies of
such documents made in favor of the related Other Trustee pursuant to the
related Other Pooling and Servicing Agreement.
(b) Promptly following the Closing Date, the Trustee shall send
written notice (which notice may be delivered electronically) (in the form of
Exhibit BB attached hereto) to related Other Trustee stating that, among other
things, the Trustee is the holder of a Non-Trust Serviced Pari Passu Loan as of
the Closing Date.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-33 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates, the Class A-M Certificates, the
Class A-MFL Certificates, the Class A-MA Certificates, the Class A-J
Certificates, the Class A-JFL Certificates and the Class A-JA Certificates will
be issuable in denominations of $25,000 initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class X-1, Class X-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class 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 EI, Class R-I, Class R-II and Class R-III Certificates each
will be issued in minimum Percentage Interests of 10% and integral multiples of
10% in excess thereof and together aggregating the entire 100% Percentage
Interest in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class A-M,
Class A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class X-1, Class
X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates that are issued in book-entry form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.7 against payment of the purchase price thereof. With
respect to the Class L, Class M, Class N, Class O, Class P, Class Q, Class S and
Class EI Certificates that are issued in definitive form, on the Closing Date,
the Authenticating Agent upon the order of the Depositor shall authenticate
Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
Section 3.2 Registration
The Paying Agent shall be the initial Certificate Registrar in
respect of the Certificates and the Certificate Registrar shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Certificate Registrar may resign or be discharged or removed by
the Paying Agent or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Paying Agent and the appointment of a successor Paying Agent. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, any Master Servicer, any Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicers, the Special Servicers or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, each Master
Servicer, each Special Servicer, 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, Class EI
Certificate or Residual Certificate or any interest therein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code or any
applicable federal, state or local law ("Similar Laws") materially similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), (B) in
book-entry form to an Institutional Accredited Investor who is not also a
Qualified Institutional Buyer or (C) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and
is being sold to a Qualified Institutional Buyer, the purchase and holding of
such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Paying Agent, the Master
Servicers, the Special Servicers or the Certificate Registrar to any obligation
in addition to those undertaken in this Agreement. Each Person who acquires any
Non-Investment Grade Certificate, Class EI Certificate or Residual Certificate
or interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or, in the case of a
Non-Investment Grade Certificate, unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Non-Investment Grade
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) in the case of a Non-Investment
Grade Certificate, that the purchase and holding of such Certificate or interest
therein by such Person qualifies for the exemptive relief available under
Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor. No transfer of
a Class EI or Residual Certificate will be made to any Person that does not make
the representation in clause (i) of the preceding sentence.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the 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) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Tax Person and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate shall
be registered until the Certificate Registrar receives, an affidavit and
agreement substantially in the form attached hereto as Exhibit E-1 (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form
and substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
that it is a United States Tax Person, that it has historically paid its
debts as they have come due and will continue to do so in the future, that
it understands that its tax liability with respect to the Residual
Certificates may exceed cash flows thereon and it intends to pay such
taxes as they come due, that it will provide the Certificate Registrar
with all information necessary to determine that the applicable paragraphs
of Section 14 of such Transfer Affidavit and Agreement are true or that
Section 14 is not applicable, that it will not cause income with respect
to the Residual Certificate to be attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable income
tax treaty) of such Person or any other United States Tax Person and that
it has reviewed the provisions of this Section 3.3(e) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Tax Person, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a certificate substantially in the
form attached hereto as Exhibit E-2 among other things stating that (x) it
has conducted a reasonable investigation of the financial condition of the
proposed Transferee and, as a result of the investigation, the Transferor
determines that the proposed Transferee had historically paid its debts as
they came due and found no significant evidence that the proposed
Transferee will not continue to pay its debts as they come due in the
future and, (y) it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee or is not a United States Tax
Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within the
meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or
is holding an Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder," by purchasing an Ownership Interest in
such Certificate, agrees to give the Certificate Registrar written notice
of its status as such immediately upon holding or acquiring such Ownership
Interest in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 3.3(e) or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Tax Person, then the last preceding Holder
of such Residual Certificate that was in compliance with the provisions of
this Section 3.3(e) shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of the
Trustee, the Master Servicers, the Special Servicers, 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 described in clause (F) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell or cause to be sold such
Residual Certificate to a purchaser selected by the 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 Paying Agent shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
necessary to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a Permitted
Transferee, including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Residual Certificate. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Paying Agent for providing such information. Each Master Servicer shall take all
reasonable action to cooperate with the Paying Agent in making such information
available.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, each Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any REMIC Pool to (x) cease to qualify as
a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicers, the Special Servicers, the
Trustee, 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 Servicers,
the Special Servicers and the Depositor, upon written request, with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates
If (A) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicers, the Special Servicers, the Trustee, the Operating Adviser,
the Paying Agent and any agents of the Master Servicers, the Special Servicers,
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 none of the Master
Servicers, the Special Servicers, the Trustee, the Paying Agent, the Operating
Adviser or any agent of the Master Servicers, the Special Servicers, 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, any Master Servicer, any 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 Servicers, the Special Servicers, the Depositor, the Paying Agent,
the Trustee or the Operating Adviser, as applicable, access during normal
business hours to a current list of the Certificateholders. The expense of
providing any such information requested by such Person shall be borne by the
party requesting such information and shall not be borne by the Certificate
Registrar or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Certificate Registrar and the Trustee shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class 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 who are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicers, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall
be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MFL,
Class A-MA, Class A-J, Class A-JFL, Class A-JA, Class B, Class C, Class D, Class
E, Class F, 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 shall be represented by IAI Definitive Certificates for such Class.
The Certificates evidenced by any Rule 144A IAI Global Certificate or IAI
Definitive Certificate shall be subject to certain restrictions on transfer as
set forth in Section 3.3 hereof and shall bear legend(s) regarding such
restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule 144A
IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, 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 and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule 144A
IAI Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A IAI Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar, the
Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
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 Servicers in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, 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, 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 (other than in respect of a
Non-Trust Serviced Loan Group) shall be made as provided herein by (i) the
Capmark Master Servicer with respect to the MSMCH Loans, the GECC Loans, the
PCFII Loans and the NatCity Loans, (ii) the Xxxxx Fargo Master servicer with
respect to the RBC Loans and the Nationwide Loans, and (iii) the NCB Master
Servicer with respect to the NCB, FSB Loans, and, if the applicable Master
Servicer does not make such Advances, by the Trustee, except to the extent that
the applicable Master Servicer or the Trustee determines in accordance with
Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicers
(a) The applicable Master Servicer shall make a P&I Advance in
respect of each Mortgage Loan of the P&I Advance Amount (if greater than zero)
on the Master Servicer Remittance Date. It is understood that the obligation of
each Master Servicer to make such P&I Advances is mandatory and shall apply
through any court appointed stay period or similar payment delay resulting from
any insolvency of the Mortgagor or related bankruptcy. Notwithstanding the
foregoing, the applicable Master Servicer shall not be required to make such P&I
Advance, if such Master Servicer determines, in accordance with Section 4.4
below, that any such P&I Advance would be a Nonrecoverable Advance and shall not
make such P&I Advance if such P&I Advance, if made, would be a Nonrecoverable
Advance as determined by the applicable Special Servicer in accordance with the
Servicing Standard and such Special Servicer has notified such Master Servicer
of such determination not later than 10:00 a.m. (and on a Business Day) on the
date prior to the date on which such Master Servicer would be required to make
such P&I Advance in the absence of a recoverability determination (it being
understood that such Master Servicer shall have no obligation to confirm such
Special Servicer's determination of non-recoverability). Such determination
shall be conclusive and binding on the Trustee and the Certificateholders.
Neither the applicable Master Servicer nor the Trustee shall advance default
interest, Balloon Payments, Prepayment Premiums or any principal and interest
payments in respect of a Non-Trust Serviced Companion Loans or Serviced
Companion Loans. The Master Servicers shall not advance any amount due to be
paid by the Swap Counterparty for distribution to the Floating Rate Certificates
in the event that the Swap Counterparty fails to make a required payment under
the related Swap Transaction. The Special Servicers shall not make P&I Advances
under this Agreement and shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Floating Rate Certificates in the event
that the Swap Counterparty fails to make a required payment under the related
Swap Transaction.
(b) If a Master Servicer determines that there is a P&I Advance
Amount with respect to its applicable Mortgage Loans for a Distribution Date,
such Master Servicer shall on the Master Servicer Remittance Date either (A)
deposit in the applicable Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in a
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the applicable Master Servicer from its own funds by deposit in such
Certificate Account on or before any future Master Servicer Remittance Date to
the extent that funds in such Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Paying Agent or other Persons
required to be made on such date.
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced
Pari Passu Loans
With respect to a Non-Trust Serviced Pari Passu Loan, the applicable
Master Servicer shall make its determination that it has made a P&I Advance on
such Non-Trust Serviced Pari Passu Loan that is a Nonrecoverable Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance
with respect to such Non-Trust Serviced Pari Passu Loan, and the applicable
Special Servicer shall make its determination in accordance with the Servicing
Standard that such P&I Advance, if made, would constitute a Nonrecoverable
Advance, both determinations to be made in accordance with Section 4.1,
including with regard to any notices required to be delivered to the applicable
Master Servicer by the applicable Special Servicer. Both such determinations
shall be made independently of any determination made by the related Other
Master Servicer under the related Other Pooling and Servicing Agreement in
respect of the related Non-Trust Serviced Companion Loan, and the related Other
Master Servicer shall make its own determination that it has made a P&I Advance
that is a Nonrecoverable Advance (as defined in the related Other Pooling and
Servicing Agreement) or that any proposed P&I Advance, if made, would constitute
a Nonrecoverable Advance (as defined in the related Other Pooling and Servicing
Agreement) with respect to the related Non-Trust Serviced Companion Loan
included in such Loan Group in accordance with the related Other Pooling and
Servicing Agreement. The determination by the applicable Master Servicer, the
related Other Master Servicer or the applicable Special Servicer, as applicable,
that any such P&I Advance is nonrecoverable shall be binding on the related
Other Master Servicer and the applicable Master Servicer, as applicable, the
Certificateholders and the holders of any securities relating to the related
Non-Trust Serviced Companion Loan unless the Trustee or the applicable Master
Servicer, as the case may be, has been advised by the related Other Trustee or
the related Other Master Servicer that the party who made such nonrecoverability
determination no longer has the required rating under the related Other Pooling
and Servicing Agreement.
If the applicable Master Servicer determines that a proposed P&I
Advance, if made, would be, or any outstanding P&I Advance previously made is,
as applicable, a Nonrecoverable Advance, the applicable Master Servicer shall
provide the related Other Master Servicer written notice of such determination
within one Business Day of the date of such determination. If the applicable
Master Servicer receives written notice by the related Other Master Servicer
that it has determined, with respect to the related Non-Trust Serviced Companion
Loan, that any proposed P&I Advance would be, or any outstanding P&I Advance is,
a Nonrecoverable Advance, then such determination shall be binding on the
Certificateholders and none of the applicable Master Servicer or the Trustee
shall make any additional P&I Advances with respect to the related Non-Trust
Serviced Pari Passu Loan unless the applicable Master Servicer has consulted
with the related Other Master Servicer and they agree that circumstances with
respect to such Loan Group have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance.
Notwithstanding the foregoing, the applicable 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 applicable
Master Servicer or the applicable Master Servicer receives written notice of
such determination by the related Other Master Servicer, none of the applicable
Master Servicer or the Trustee shall make any additional P&I Advances with
respect to a Non-Trust Serviced Pari Passu Loan until the applicable Master
Servicer has followed the process set forth in this Section 4.1A.
Notwithstanding the foregoing, for so long as the Capmark Master
Servicer is a related Other Master Servicer, the notice from or to such related
Other Master Servicer shall be deemed to be made without actual written notice.
Section 4.2 Servicing Advances
The applicable Master Servicer and, if such Master Servicer does
not, the Trustee to the extent the Trustee receives written notice from such
Master Servicer that such Advance has not been made by such Master Servicer,
shall make Servicing Advances within 5 Business Days after the determination
that such Servicing Advance is necessary (and, in the case of the Trustee,
within 6 Business Days after receipt of such notice (i.e., 5 Business Days after
receipt of such notice and one additional Business Day after the delivery of
notice to the applicable Master Servicer, pursuant to Section 4.3(b) hereof,
that such Master Servicer has not made the required Servicing Advance) or, with
respect to such Master Servicer or the Trustee, such shorter period, as may be
required to avoid a foreclosure of liens for delinquent real estate taxes or a
lapse in insurance coverage, to the extent provided in this Agreement, except to
the extent that such Master Servicer or the Trustee, as applicable, determines
in accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. If such Master Servicer or the Trustee, as applicable,
determines that such advance would constitute a Nonrecoverable Advance, then
such party shall promptly deliver notice of such determination to the applicable
Special Servicer. Upon receipt of such notice, such Special Servicer shall
promptly determine (with the reasonable assistance of such Master Servicer or
the Trustee, as applicable) whether the payment of such amount is (i) necessary
to preserve the related Mortgaged Property and (ii) would be in the best
interest of the Certificateholders (or, with respect to a Serviced Loan Group,
in the best interests of the Certificateholders and the holder of the related
Serviced Companion Loan, as a collective whole). If such Special Servicer shall
determine that the payment of such amount is (i) necessary to preserve the
related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders (or, with respect to the Serviced Loan Group, in the best
interests of the Certificateholders and the holder of the related Serviced
Companion Loan, as a collective whole), then such Special Servicer shall
promptly direct such Master Servicer or the Trustee, as applicable, in writing
to make such payment and such party shall make such payment from amounts in the
Certificate Account within the time periods set forth herein. Such determination
by such Master Servicer or such Special Servicer shall be conclusive and binding
on the Trustee and the Certificateholders. The applicable Special Servicer shall
not be required to make Servicing Advances under this Agreement, but may make
such Servicing Advances, on an emergency basis, at its option in which event the
applicable Master Servicer shall reimburse such Special Servicer promptly but no
later than 5 Business Days of receipt of a statement therefor sent to the
applicable Master Servicer within 1 Business Day of making such Servicing
Advances. The applicable Special Servicer promptly shall notify the applicable
Master Servicer that a Servicing Advance is required in connection with a
Specially Serviced Mortgage Loan or REO Property, and such Master Servicer shall
make such Servicing Advance within 5 Business Days of receipt of such notice (or
such shorter period as may be required to avoid a foreclosure of liens for
delinquent real estate taxes or a lapse in insurance coverage). In addition, the
applicable Special Servicer shall provide the applicable Master Servicer or the
Trustee with such information in its possession as the applicable Master
Servicer or the Trustee may reasonably request to enable such Master Servicer or
the Trustee, as applicable, to determine whether a requested Servicing Advance
would constitute a Nonrecoverable Advance. Any request by a Special Servicer
that a Master Servicer make a Servicing Advance shall be deemed to be a
determination by such Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Advance and such Master Servicer shall be entitled to
conclusively rely on such determination; provided, that the determination shall
not be binding on any Master Servicer or the Trustee. The applicable Master
Servicer or the applicable Special Servicer may update or change its
recoverability determinations at any time (but not reverse the other Master
Servicer or Special Servicer's determination that an Advance is a Nonrecoverable
Advance). Promptly after discovering that such applicable Master Servicer has
failed to make a Servicing Advance that such Master Servicer is required to make
hereunder, the Paying Agent shall promptly notify the Trustee in writing of the
failure by such Master Servicer to make such Servicing Advance.
The related Other Master Servicer is obligated to make Servicing
Advances (as defined in the related Other Pooling and Servicing Agreement)
pursuant to the related Other Pooling and Servicing Agreement with respect to a
Non-Trust Serviced Pari Passu Loan, and no party to this Agreement shall have
any obligation, and shall not be entitled, to make any Servicing Advances with
respect to such Non-Trust Serviced Pari Passu Loan.
Section 4.3 Advances by the Trustee
(a) To the extent that a Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that such
Master Servicer determines is a Nonrecoverable Advance), and other than with
respect to a Serviced Companion Loan, the Trustee shall make such P&I Advance to
the extent the Trustee receives written notice from such Master Servicer and/or
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 applicable Master
Servicer on the Master Servicer Remittance Date unless the Trustee determines
that such P&I Advance, if made, would be a Nonrecoverable Advance (or with
respect to a Non-Trust Serviced Pari Passu Loan, the related Other Master
Servicer makes a nonrecoverability determination as described in Section 4.1A).
To the extent the Trustee is required hereunder to make P&I Advances on the
Mortgage Loans, it shall remit the amount thereof to the Paying Agent for
deposit in the Distribution Account by 1:00 p.m. (New York City time) on each
such Distribution Date. The applicable Master Servicer shall notify the Trustee
in writing as soon as practicable, but not later than 10:00 a.m. (New York City
time) on the Distribution Date if such Master Servicer has failed to make a P&I
Advance. The Trustee shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Floating Rate Certificates in the event
that the Swap Counterparty fails to make a required payment under the related
Swap Transaction.
(b) To the extent that a Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that such Master Servicer or the applicable Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives notice thereof, the Trustee shall notify such Master Servicer
of such failure and the Trustee shall make such Servicing Advance promptly, but
in any event, not later than six Business Days after notice thereof in
accordance with Section 4.2 (i.e., 5 Business Days after receipt of notice by
the Trustee pursuant to Section 4.2 that such Servicing Advance is required to
be made by the applicable Master Servicer, and one additional Business Day after
the delivery of notice to the applicable Master Servicer, as set forth above,
that such Master Servicer has not made the required Servicing Advance) (or such
shorter period as may be required to avoid a foreclosure of liens for delinquent
real estate taxes or a lapse in insurance coverage), unless the Trustee
determines that such Servicing Advance, if made, would be a Nonrecoverable
Advance. If the Trustee determines that such advance would constitute a
Nonrecoverable Advance, then the Trustee shall deliver notice of such
determination to the applicable Special Servicer. Upon receipt of such notice,
such Special Servicer shall determine (with the reasonable assistance of the
Trustee) whether the payment of such amount is (i) necessary to preserve the
related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders. If such Special Servicer shall determine that the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders, then such Special
Servicer shall promptly direct the Trustee in writing to make such payment and
the Trustee shall make such payment within five Business Days after receipt of
such notice (or such shorter period as may be required to avoid a foreclosure of
liens for delinquent real estate taxes or a lapse in insurance coverage) from
amounts in the Distribution Account.
Section 4.4 Evidence of Nonrecoverability
(a) If a Master Servicer or a Special Servicer determines at any
time, in its sole discretion, exercised in accordance with the Servicing
Standard, that any Advance previously made (or Unliquidated Advance in respect
thereof) or any proposed Advance, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the applicable Master Servicer or the applicable
Special Servicer, the Paying Agent, the Operating Adviser and the Rating
Agencies (and the holder of a Serviced Companion Loan, if the Advance relates to
the related Serviced Loan Group) promptly upon making such determination, but in
no event later than the Business Day following the date of such determination.
Such Officer's Certificate shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the applicable Master Servicer's or the applicable 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 applicable Master Servicer or the
applicable Special Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other information
relevant thereto which support such determination. If the Trustee determines at
any time, in its sole discretion, exercised in good faith, that any portion of
an Advance previously made or a portion of a proposed Advance that the Trustee
is required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the applicable Master Servicer, the applicable Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of a Master
Servicer or a Special Servicer described in the prior sentence. The Trustee
shall not be required to make an Advance that the applicable Master Servicer or
the applicable Special Servicer has previously determined to be a Nonrecoverable
Advance. Notwithstanding any other provision of this Agreement, none of the
Master Servicers, the Special Servicers or the Trustee shall be obligated to,
nor shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if the Trustee determines in its good faith business
judgment and, with respect to the applicable Master Servicer or the applicable
Special Servicer, in accordance with the Servicing Standard, that such Advance
or such payment (including interest accrued thereon at the Advance Rate) would
be a Nonrecoverable Advance. Absent bad faith, the applicable Master Servicer's
determination as to the nonrecoverability of any Advance shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee; provided, however, that the applicable Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard that any
P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to such Master Servicer and the Trustee notice of such
determination; provided, further, however, such Special Servicer shall have no
right to make an affirmative determination that any P&I Advance is or would be
recoverable and, in the absence of a determination by such Special Servicer that
such Advance is or would be a Nonrecoverable Advance, the decision that a P&I
Advance is recoverable shall remain with the applicable Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by the applicable
Special Servicer shall be conclusive and binding on the Certificateholders, the
Master Servicers and the Trustee and the applicable Master Servicer shall have
no obligation to verify such Special Servicer's determination that an Advance
would be non-recoverable. Absent bad faith or breach of the servicing standard
under the related Other Pooling and Servicing Agreement known to the applicable
Master Servicer or the Trustee, as applicable, the determination as to the
nonrecoverability of any principal and interest advance made or proposed to be
made with respect to the related Non-Trust Serviced Companion Loan pursuant to
the related Other Pooling and Servicing Agreement, shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee and the applicable Master Servicer unless the Trustee or the applicable
Master Servicer, as the case may be, has been advised by the related Other
Trustee or the related Other Master Servicer that the party who made such
nonrecoverability determination no longer has the required rating under the
related Other Pooling and Servicing Agreement. The applicable Master Servicer
shall consider Unliquidated Advances in respect of prior P&I Advances and
Servicing Advances as outstanding Advances for purposes of nonrecoverability
determinations as if such Unliquidated Advance were a P&I Advance or Servicing
Advance, as applicable.
(b) With respect to a Non-Trust Serviced Pari Passu Loan, the
related Other Master Servicer, the related Other Special Servicer and the
related Other Trustee, as applicable, shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable Servicing Advances with respect to such Non-Trust
Serviced Pari Passu Loan serviced by the related Other Master Servicer or the
related Other Special Servicer (with, in each case, any accrued and unpaid
interest thereon provided for under the related Other Pooling and Servicing
Agreement) in the manner set forth in Section 5.2(a) Subsection (I)(ii) and
5.2(a) Subsection (I)(iii).
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan
Any unreimbursed Advance funded from each Master Servicer's, each
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicers nor
any other party shall be entitled to interest accrued on the amount of any P&I
Advance with respect to any Mortgage Loan for the period commencing on the date
of such P&I Advance and ending on the day on which the grace period applicable
to the related Mortgagor's obligation to make the related Scheduled Payment
expires pursuant to the related Mortgage Loan documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of such Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular REO Property and treated as collections of principal or
interest shall be applied first to reimburse the earliest P&I Advance and then
each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The
applicable Master Servicer shall use efforts consistent with the Servicing
Standard to collect (but shall have no further obligation to collect), with
respect to the Mortgage Loans (and each Serviced Companion Loan) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest incurred and unpaid
with respect to such Mortgage Loan arising on or after the Cut-Off Date. The
applicable Master Servicer shall be entitled to retain Late Fees and default
interest paid by any Mortgagor during a Collection Period with respect to any
Mortgage Loan (other than the portion of such Late Fees and default interest
that relates to the period commencing after the Servicing Transfer Event in
respect of a Specially Serviced Mortgage Loan, as to which the applicable
Special Servicer shall retain Late Fees and default interest with respect to
such Specially Serviced Mortgage Loan, subject to the offsets set forth below)
as additional servicing compensation only to the extent such Late Fees and
default interest with respect to such Mortgage Loan exceed unreimbursed Advance
Interest with respect to such Mortgage Loan arising on or after the Cut-Off
Date. The applicable Special Servicer, with respect to any Specially Serviced
Mortgage Loan, shall (i) pay from any Late Fees and default interest collected
from such Specially Serviced Mortgage Loan (a) any outstanding and unpaid
Advance Interest payable with respect to such Specially Serviced Mortgage Loan
to the applicable Master Servicer, the applicable Special Servicer or the
Trustee, as applicable, and (b) to the Trust, any losses previously incurred by
the Trust with respect to such Specially Serviced Mortgage Loan (other than the
related Special Servicing Fees) and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation. It
is hereby acknowledged that the applicable Master Servicer may only waive Late
Fees and default interest to the extent set forth in Section 8.3(a).
Notwithstanding the foregoing, Late Fees and default interest received by the
applicable Master Servicer with respect to a Serviced Loan Group shall be
allocable among the applicable Master Servicer or the applicable Special
Servicer, as the case may be, and the holders of the related Serviced Companion
Loans in accordance with the related Co-Lender Agreement.
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan, each Serviced
Companion Loan, each Specially Serviced Mortgage Loan or each REO Property
(including Advances later determined to be Nonrecoverable Advances) and Advance
Interest thereon shall be reimbursed to the extent of the amounts identified to
be applied therefor in Section 5.2. The aggregate of the amounts available to
repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in
any Collection Period with respect to Mortgage Loans, each Serviced Companion
Loan, 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 Loan, any Specially Serviced Mortgage Loans or any
REO Mortgage Loans, the Available Advance Reimbursement Amount with respect to
any Determination Date shall be applied to reimburse (i) the Trustee for any
Advances outstanding to the Trustee with respect to any of such Mortgage Loans,
any Serviced Companion Loan, any of such Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Trustee with respect
to such Advances and then (ii) the applicable Master Servicer and the applicable
Special Servicer for any Advances outstanding to such Master Servicer or such
Special Servicer, as the case may be, with respect to any of such Mortgage
Loans, any Serviced Companion Loan, any of such Specially Serviced Mortgage
Loans or REO Mortgage Loans, plus any Advance Interest owed to the applicable
Master Servicer or the applicable Special Servicer with respect to such
Advances. To the extent that any Advance Interest payable to the applicable
Master Servicer, the applicable Special Servicer or the Trustee with respect to
a Specially Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from
the related Mortgagor, the amount of such Advance Interest shall be payable to
the Trustee, the applicable Master Servicer or the applicable Special Servicer,
as the case may be, from amounts on deposit in the applicable Certificate
Account (or sub-account thereof) (or, if not available from such Certificate
Account, the other Certificate Account) or the Distribution Account pursuant to
Section 5.2(a) or Section 5.3(b)(ii), to the extent of amounts identified to be
applied thereunder. The Master Servicers', the Special Servicers' and the
Trustee's right of reimbursement under this Agreement for Advances and interest
thereon shall be prior to the rights of the Certificateholders (and, in the case
of a Serviced Companion Loan, the holder of such Serviced Companion Loan) to
receive any amounts recovered with respect to such Mortgage Loans, Serviced
Companion Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-Off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the applicable Special Servicer and/or the applicable Master Servicer (in
accordance with the priorities specified in the preceding paragraph) first, from
Late Fees and default interest collected with respect to such Mortgage Loan
during the Collection Period, and then from Excess Liquidation Proceeds then
available prior to payment from any other amounts. Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest with respect to a Mortgage Loan will be offset against the
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-Off Date). In the case of a Serviced Loan Group, subject to
the related Co-Lender Agreement, Advance Interest on Servicing Advances payable
to the applicable Master Servicer, the applicable Special Servicer or the
Trustee, as applicable, shall be allocated (i) in the case that the related
Serviced Companion Loans are Pari Passu Loans, to the related Senior Mortgage
Loan and the Serviced Companion Loans, on a pari passu basis, based on their
respective outstanding principal balances and (ii) in the case that the related
Serviced Companion Loan is a Subordinate Loan, then first, to such Subordinate
Loan up to its outstanding principal balance and then, to the related Senior
Mortgage Loan; provided that if there is more than one Subordinate Loan, such
Advance Interest on Servicing Advances shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most subordinate note and
then to the next subordinate note, etc.)
(d) To the extent that a Special Servicer incurs out-of-pocket
expenses (other than the Servicing Advances pursuant to Section 4.2), in
accordance with the Servicing Standard, in connection with servicing Specially
Serviced Mortgage Loans, the applicable Master Servicer shall, subject to
Section 4.4, reimburse such Special Servicer for such expenditures on the next
succeeding Master Servicer Remittance Date, provided such Special Servicer has
delivered, on or before the related Determination Date, an invoice and a report
substantiating such expenses from such Special Servicer requesting such
reimbursement. All such amounts paid by such Special Servicer and reimbursed by
the applicable Master Servicer shall be a Servicing Advance. In the event that
the applicable Master Servicer fails to reimburse such Special Servicer
hereunder or the applicable Master Servicer determines that such Servicing
Advance was or, if made, would be a Nonrecoverable Advance and the applicable
Master Servicer does not make such payment, such Special Servicer shall notify
the applicable Master Servicer and the Trustee in writing of such nonpayment and
the amount payable to such Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The applicable
Master Servicer, the Paying Agent and the Trustee shall have no obligation to
verify the amount payable to such Special Servicer pursuant to this Section
4.6(d) and circumstances surrounding the notice delivered by such Special
Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections
(a) On or prior to the Closing Date, each Master Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, (i) in the case of the Capmark Master Servicer, in the name "Capmark
Finance Inc., as Capmark Master Servicer for LaSalle Bank National Association,
as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16," (ii) in the case of the Xxxxx
Fargo Master Servicer, in the name "Xxxxx Fargo Bank, National Association, as
Xxxxx Fargo Master Servicer for LaSalle Bank National Association, as Trustee
for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16," and (iii) in the case of the NCB
Master Servicer, in the name "NCB, FSB, as NCB Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16"
(collectively, or individually, as the case may be, the "Certificate Account").
The Capmark Master Servicer shall maintain the Certificate Account with respect
to the MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity Loans other
than the Non-Trust Serviced Pari Passu Loans, the Xxxxx Fargo Master Servicer
shall maintain the Certificate Account with respect to the RBC Loans and the
Nationwide Loans, and the NCB Master Servicer shall maintain the Certificate
Account with respect to the NCB, FSB Loans. On or prior to the Closing Date, in
respect of the Interest Reserve Loans, the Paying Agent shall open, or cause to
be opened, and shall maintain, or cause to be maintained an additional separate
account or accounts in the name of "Xxxxx Fargo Bank, National Association as
Paying Agent on behalf of LaSalle Bank National Association, as Trustee, in
trust for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16" (the "Interest Reserve Account").
(b) On or prior to the date a Master Servicer shall initially
deposit funds in a Certificate Account, such Master Servicer shall give to the
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 Servicers shall take such actions as are
necessary to cause any depository institution holding a Certificate Account to
hold such accounts in the name of the applicable Master Servicer as provided in
Section 5.1(a), subject to such Master Servicer's (or its Primary Servicer's or
its Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The applicable Master Servicer shall deposit, or cause to be
deposited, into its Certificate Account within two Business Days following
receipt, the following amounts received by it (including amounts remitted to
such Master Servicer by the applicable Special Servicer from the applicable REO
Account pursuant to Section 9.14 and amounts received from the Primary Servicers
or Sub-Servicers), other than amounts received by it in respect of interest and
principal on the Mortgage Loans or Serviced Companion Loans due on or before the
Cut-Off Date which shall be remitted to the applicable Seller (provided that
such Master Servicer (I) may retain amounts otherwise payable to such Master
Servicer as provided in Section 5.2(a) rather than deposit them into such
Certificate Account, (II) shall, rather than deposit them in the Certificate
Account, directly remit to the Primary Servicers the applicable Primary
Servicing Fees payable as provided in Section 5.2(a)(iv) (unless already
retained by the applicable Primary Servicer), and (III) shall, rather than
deposit them in a Certificate Account, directly remit the Excess Servicing Fees
to the holders thereof as provided in Section 5.2(a)(iv) (unless already
retained by the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof, on the
Mortgage Loans and the Serviced Companion Loans;
(B) Interest: all payments on account of interest on the
Mortgage Loans and the Serviced Companion Loans (including Excess
Interest, which shall be payable only to the Class EI
Certificateholders, in each case as provided herein, and excluding
Interest Reserve Amounts to be deposited in the applicable Interest
Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans and the Serviced Companion Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by such Master Servicer into the applicable Escrow Account
and not deposited in the Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by such Master Servicer into the applicable
Escrow Account and not deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the applicable
Special Servicer;
(G) Investment Losses: any amounts required to be deposited by
such Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held
in the Certificate Accounts and amounts required to be deposited by
the applicable Special Servicer pursuant to Section 9.14(b) in
connection with losses realized on Eligible Investments with respect
to funds held in the REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to
this Agreement, including, but not limited to, Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or the maker of a
representation and warranty with respect to any Mortgage Loan or
substitution shortfall amounts (as described in the ninth paragraph
of Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans, any
payments or recoveries in respect of Unliquidated Advances or in
respect of Nonrecoverable Advances paid from principal collections
on the Mortgage Loans pursuant to Section 5.2(a)(II) and, with
respect to the Serviced Companion Loans, all other amounts received
pursuant to the cure and purchase rights or reimbursement
obligations set forth in the related Co-Lender Agreement.
With respect to each Serviced Loan Group, the applicable Master
Servicer shall establish and maintain a sub account of the Certificate Account
for each Serviced Companion Loan (the "Serviced Companion Loan Custodial
Account") into which the applicable Master Servicer shall deposit any amounts
described above that are required to be paid to the holder of such Serviced
Companion Loan pursuant to the terms of the related Co-Lender Agreement, in each
case on the same day as the deposit thereof into the Certificate Account. Each
Serviced Companion Loan Custodial Account shall be held in trust for the benefit
of the holder of the Serviced Companion Loan and shall not be part of any REMIC
Pool.
Remittances from any REO Accounts to the applicable Master Servicer
for deposit in the applicable Certificate Accounts shall be made by the
applicable Special Servicer no later than the Special Servicer Remittance Date.
(d) The Paying Agent, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year
(unless such Distribution Date is the Final Distribution Date), shall deposit in
the applicable Interest Reserve Account in respect of each related Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate (without regard to the provisos in the definition of Adjusted
Mortgage Rate), on the Scheduled Principal Balance of such Mortgage Loan as of
the Due Date in the month in which such Distribution Date occurs, to the extent
a Scheduled Payment or P&I Advance is timely made in respect thereof for such
Due Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount").
Funds in an Interest Reserve 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 applicable Master Servicer Remittance
Date which will allow the Paying Agent to make withdrawals from such Interest
Reserve Account under Section 5.2(c), 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 Paying Agent, on behalf of LaSalle Bank National Association, as
Trustee, in trust for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass Through Certificates, Series 2007-IQ16." None of
the Depositor, the Mortgagors, the Special Servicers, the Master Servicers, the
Primary Servicers or the Trustee shall be liable for any loss incurred on such
Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in such Interest Reserve Account
out of its own funds immediately as realized.
(e) Funds in the Certificate Accounts (including the Serviced
Companion Loan Custodial Account) may be invested and, if invested, shall be
invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by such Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "LaSalle Bank National Association, as Trustee for
the Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16 and the holder of each Serviced
Companion Loan, 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 applicable Master Servicer as additional
servicing compensation and shall be subject to its withdrawal at any time from
time to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the applicable Master Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the applicable Certificate Account (and, solely to the
extent that the loss is of an amount credited to the Serviced Companion Loan
Custodial Account, deposit to the Serviced Companion Loan Custodial Account) out
of its own funds immediately as realized. No Master Servicer shall be liable for
any losses incurred in respect of any account which is not controlled by such
Master Servicer or any losses with respect to a default on an Eligible
Investment. If the applicable Master Servicer deposits in or transfers to any
Certificate Account or the Serviced Companion Loan Custodial Account, as the
case may be, any amount not required to be deposited therein or transferred
thereto, it may at any time withdraw such amount or retransfer such amount from
such Certificate Account or such Serviced Companion Loan Custodial 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 a Master Servicer shall have deposited
in the applicable Certificate Account or the Serviced Companion Loan Custodial
Account, as the case may be, an amount equal to all amounts due under any such
Eligible Investment (net of anticipated income or earnings thereon that would
have been payable to such Master Servicer as additional servicing compensation)
such Master Servicer shall have the sole right to enforce such payment or
performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the applicable Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The applicable Master Servicer
shall deal with these amounts in accordance with the Servicing Standard, the
terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary
Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). No
Master Servicer shall release any Escrow Amounts held for "earn-outs" or
performance criteria listed on Schedule XI hereof, without the prior consent of
the Operating Adviser, which consent shall not be unreasonably withheld or
delayed. Within 20 days following the first anniversary of the Closing Date, the
applicable Master Servicer shall deliver to the Trustee, the Paying Agent and
the Operating Adviser, for each Mortgage Loan set forth on Schedule VIII hereto,
a brief statement as to the status of the work or project based on the most
recent information provided by the related Mortgagor. Schedule VIII sets forth
those Mortgage Loans as to which an upfront reserve was collected at the closing
of such Mortgage Loan (and still exists) in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the applicable Special Servicer (which shall itself consult with
the Operating Adviser) will consult with each other as to whether there exists a
material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XII, as
to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, subject to Section 4.4, the applicable
Master Servicer shall, unless the Scheduled Payment is received before the end
of the Collection Period, make a P&I Advance by deposit to the Certificate
Account on the Master Servicer Remittance Date in an amount equal to the
Scheduled Payment or the Assumed Scheduled Payment, as applicable, and for
purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount," such Scheduled Payment or Assumed Scheduled Payment, as
applicable, shall be deemed to have been received in such Collection Period.
With respect to a Non-Trust Serviced Pari Passu Loan, any amounts received by
the applicable Master Servicer pursuant to the related Other Pooling and
Servicing Agreement with respect to a Distribution Date shall be deemed to have
been received by the applicable Master Servicer in the related Collection Period
for purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount."
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Account
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 p.m., New York City time, on the related Master Servicer
Remittance Date, in immediately available funds to the account specified in this
Section or otherwise (x) to such account as each shall determine from time to
time of amounts payable to the applicable Master Servicer from the applicable
Certificate Account (or, insofar as they relate to a Serviced Companion Loan,
from the Serviced Companion Loan Custodial Account) pursuant to clauses (i),
(ii), (iii), (iv), (vi), (viii) and (ix) below; (y) to the account specified in
writing by the Paying Agent from time to time of amounts payable to the Paying
Agent and the Trustee from the applicable Certificate Account (or, insofar as
they relate to a Serviced Companion Loan, from the Serviced Companion Loan
Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; provided that if a Master Servicer fails to make any remittance
required by this Subsection (I) to the Paying Agent for deposit in the
Distribution Account on the Master Servicer Remittance Date pursuant to clause
(iii) or (xi) below, such 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 such Master Servicer,
then such Event of Default shall thereupon be deemed to have been cured; and (z)
to the applicable Special Servicer from time to time of amounts payable to such
Special Servicer from the applicable Certificate Account (or, insofar as they
relate to a Serviced Companion Loan, from the Serviced Companion Loan Custodial
Account) pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below of the
following amounts, from the amounts specified for the following purposes:
(i) Fees: Each of the Capmark Master Servicer and the Xxxxx Fargo
Master Servicer shall pay (A) to itself Late Fees (in excess of amounts
used to pay Advance Interest) relating to the applicable Mortgage Loans
(or Serviced Companion Loans) which are not Specially Serviced Mortgage
Loans, 50% of any Modification Fees relating to the applicable Mortgage
Loans (or Serviced Companion Loans) which are not Specially Serviced
Mortgage Loans (or 100% if consent is not required from the applicable
Special Servicer), 50% of assumption application fees and 50% of any
assumption fees relating to the applicable Mortgage Loans (or Serviced
Companion Loans) which are not Specially Serviced Mortgage Loans that
require Special Servicer approval or 100% of any assumption fees and
assumption application fees relating to the applicable Mortgage Loans
which are not Specially Serviced Mortgage Loans that, with respect to the
assignment, assumption or substitution (a) the consent of the applicable
Special Servicer was not required or (b) is "expressly permitted" pursuant
to the terms of the related Mortgage Loan, 100% of any extension fees
payable to the applicable Master Servicer under Section 8.10, 100% of
defeasance fees to the extent payable under Section 8.3(h) or other fees
payable to the applicable Master Servicer hereunder; provided that any
such fees described in (A) hereof shall be divided between such Master
Servicer and any related Primary Servicer as set forth in the applicable
Primary Servicing Agreement and (B) directly to the applicable Special
Servicer, 50% of any assumption fees and assumption application fee (to
the extent (a) the consent of such Special Servicer was required or (b)
assumption is not "expressly permitted" pursuant to the terms of the
related Mortgage Loan), 50% of modification fees and related charges on
the applicable Mortgage Loans (or Serviced Companion Loans) which are not
Specially Serviced Mortgage Loans (if collected on a transaction which
requires consent from the applicable Special Servicer; otherwise, 100% of
the applicable fee) and, to the extent deposited into a Certificate
Account, 100% of all assumption fees (including assumption application
fees) relating to Specially Serviced Mortgage Loans and, to the extent
provided in Section 9.11(c), Late Fees, Modification Fees, extension fees
and other fees collected on Specially Serviced Mortgage Loans (that are
related to the applicable Mortgage Loans), in each case to the extent
provided for herein from funds paid by or on behalf of the applicable
Mortgagor and, to the extent provided in Section 9.11(c), default interest
(in excess of Advance Interest arising only from that particular Specially
Serviced Mortgage Loan (that are related to the applicable Mortgage Loans)
for which the Late Fees or default interest were collected).
The NCB Master Servicer shall pay (A) to itself Late Fees (in excess
of amounts used to pay Advance Interest) relating to NCB, FSB Loans which
are not Specially Serviced Mortgage Loans, 100% of any Modification Fees
relating to NCB, FSB Loans which are not Specially Serviced Mortgage
Loans, 100% of assumption application fees relating to NCB, FSB Loans that
are not Specially Serviced Mortgage Loans, 50% of any assumption fees
relating to NCB, FSB Loans that are not Specially Serviced Mortgage Loans,
100% of any extension fees payable to such Master Servicer under Section
8.10, 100% of defeasance fees to the extent payable under Section 8.3(h)
or other fees payable to the NCB Master Servicer hereunder; and (B)
directly to the applicable Special Servicer, 50% of any assumption fees on
NCB, FSB Loans that are not Specially Serviced Mortgage Loans and, to the
extent deposited into a Certificate Account, 100% of assumption fees
(including assumption application fees) relating to Specially Serviced
Mortgage Loans (that are NCB, FSB Loans) and, to the extent provided in
Section 9.11(c), Late Fees, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by or on behalf of the applicable Mortgagor and, to
the extent provided in Section 9.11(c), default interest (in excess of
Advance Interest arising only from that particular Specially Serviced
Mortgage Loan (that are NCB, FSB Loans) for which the Late Fees or default
interest were collected).
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans and the
Serviced Companion Loans, subject to clause (B) below and subsection (iv)
of Section 5.2(a)(II) below, to reimburse or pay to the Master Servicers,
the Special Servicers and the Trustee, pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination in accordance with
Section 4.4 that any Servicing Advance is a Nonrecoverable Advance,
Servicing Advances on the related Mortgage Loan (or Serviced Companion
Loan) from payments made by or on behalf of the related Mortgagor of the
amounts to which a Servicing Advance relates or from REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a
Servicing Advance has been or is being reimbursed, any related Advance
Interest thereon first, from Late Fees and default interest collected
during the Collection Period, and then from Excess Liquidation Proceeds
then available and then from any other amounts on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account); provided that Late Fees and
default interest will be applied on a "loan by loan basis" (under which
Late Fees and default interest paid with respect to each Mortgage Loan or
a Serviced Companion Loan, will be offset against the Advance Interest
incurred and unpaid with respect to the particular Mortgage Loan or
Serviced Companion Loan, as applicable, on or after the Cut-Off Date), to
the payment of Advance Interest incurred on or after the Cut-Off Date and
unpaid on all Advances on such Mortgage Loan or (y) after a Final Recovery
Determination or determination that any Servicing Advance on the related
Mortgage Loan or Serviced Companion Loan is a Nonrecoverable Advance, any
Servicing Advances made on the related Mortgage Loan, Serviced Companion
Loan or REO Property, as applicable, from any funds on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account) (regardless of whether such amount
was recovered from the applicable Mortgage Loan, Serviced Companion Loan
or REO Property) and pay Advance Interest thereon first, from Late Fees
and default interest collected during the Collection Period (applying such
Late Fees and default interest on a "loan by loan basis" to the payment of
Advance Interest incurred and unpaid on all Advances on such Mortgage Loan
or Serviced Companion Loan, as applicable, arising on or after the Cut-Off
Date), then from Excess Liquidation Proceeds then available and then from
any other amounts on deposit in the applicable Certificate Account
(notwithstanding anything herein to the contrary each Master Servicer
shall reimburse itself or such other party pursuant to Section 4.4(b)) and
(B) in the case of a Non-Trust Serviced Pari Passu Loan and from any funds
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other Certificate Account), to
reimburse the related Other Master Servicer, the related Other Special
Servicer and the related Other Trustee for the related Pari Passu Loan
Nonrecoverable Servicing Advances and any accrued and unpaid interest
thereon provided for under the related Other Pooling and Servicing
Agreement;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to each
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to
a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period and allocable
to such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account); provided that Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees
and default interest paid with respect to each Mortgage Loan will be
offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date) or (y) if after
a Final Recovery Determination or determination in accordance with Section
4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis,"
to the payment of Advance Interest incurred and unpaid on all Advances on
such Mortgage Loan incurred on or after the Cut-Off Date), then from
Excess Liquidation Proceeds then available and then from any other amounts
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other Certificate Account);
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the applicable Special Servicer the Special Servicing
Fee and the Work-Out Fee and, if applicable, to pay to the Primary
Servicers (or the applicable Master Servicer) the Primary Servicing Fees
and to pay to the parties entitled thereto the Excess Servicing Fees (to
the extent not previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal
by the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses at the time set
forth herein or in the definition thereof, the payment of which is not
more specifically provided for in this Agreement; provided that the
Depositor shall not be entitled to receive reimbursement for performing
its duties under this Agreement;
(vii) Liquidation Fees: to pay to the applicable Special Servicer
from the applicable Certificate Accounts, the amount certified by such
Special Servicer equal to the Liquidation Fee, to the extent provided in
Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in the applicable Certificate
Accounts (including the Serviced Companion Loan Custodial Account);
(ix) Prepayment Interest Excesses: to pay to the Master Servicers
the aggregate Prepayment Interest Excesses relating to the Mortgage Loans
for which they act as Master Servicer which are not Specially Serviced
Mortgage Loans, to the extent not offset by Prepayment Interest Shortfalls
relating to such Mortgage Loans; and to pay to the Master Servicers the
aggregate Prepayment Interest Excesses relating to the Specially Serviced
Mortgage Loans for which they act as Master Servicer, which have received
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Specially
Serviced Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date of the remaining amounts in the applicable Certificate
Accounts (excluding Excess Interest and Excess Liquidation Proceeds) into
the Distribution Account (or in the case of any Excess Interest, deposit
to the Excess Interest Sub-account), other than amounts held for payment
in future periods or pursuant to clause (xii) below and, in the case of
the Capmark Master Servicer, the obligation to make such payments to be
offset by the amount of any Net Swap Payment, as set forth in Section
8.31(b) and Section 6.12; provided, that the Capmark Master Servicer is
provided written notice of the amount of such Net Swap Payment no later
than the second Business Day prior to the Distribution Date;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29;
provided, however, that in the case of a Serviced Companion Loan:
(A) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the Serviced Companion Loan Custodial
Account to the portion of the Certificate Account that does not constitute
the Serviced Companion Loan Custodial Account, of amounts necessary for
the payments or reimbursement of amounts described in any one or more of
clauses (i), (ii), (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 a Serviced Loan Group and is allocable to the
related Serviced Companion Loan, and the applicable Master Servicer shall
also be entitled to make transfers from time to time, from the Serviced
Companion Loan Custodial Account to the portion of the Certificate Account
that does not constitute the Serviced Companion Loan Custodial Account, of
amounts transferred to the Serviced Companion 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
applicable Master Servicer shall not be entitled to make transfers from
the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account (other than amounts previously
transferred from the Serviced Companion Loan Custodial Account in
accordance with this clause (A)) of amounts necessary for the payment or
reimbursement of amounts described in any one or more of the foregoing
clauses;
(B) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the Serviced Companion Loan Custodial
Account to the portion of the Certificate Account that does not constitute
the Serviced Companion Loan Custodial Account, of amounts not otherwise
described in clause (A) above to which the holder of each Senior Mortgage
Loan is entitled under the related Co-Lender Agreement (including in
respect of interest, principal and Prepayment Premiums); and
(C) the applicable 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 Serviced Companion Loan is primary serviced
under a Primary Servicing Agreement, two (2) Business Days after receipt
from the Primary Servicer (unless otherwise provided for in the related
Co-Lender Agreement) or (y) such other date as may be agreed to between
the applicable Master Servicer and the holder of such Serviced Companion
Loan (in their respective sole discretion), remit to the holder of such
Serviced Companion Loan all amounts on deposit in the Serviced Companion
Loan Custodial Account (net of amounts permitted or required to be
transferred therefrom as described in clauses (A) and/or (B) above), to
the extent that the holder of a Serviced Companion Loan is entitled
thereto under the related Co-Lender Agreement, and
Expenses incurred with respect to each Serviced Loan Group shall be
allocated in accordance with the related Co-Lender Agreement. The applicable
Master Servicer shall keep and maintain a separate accounting for each Mortgage
Loan and the Serviced Companion Loans for the purpose of justifying any
withdrawal or transfer from the Certificate Account and the Serviced Companion
Loan Custodial Account, as applicable. If funds collected with respect to the
Senior Mortgage Loan are insufficient to pay amounts due to the Trust as the
holder thereof (or to the parties to this Agreement) pursuant hereto, then the
Master Servicer shall, to the extent permitted by the related Co-Lender
Agreement, be entitled to withdraw the amount of such shortfall from collections
on, and other proceeds of, a Subordinate Loan; provided that if there is more
than one Subordinate Loan, such shortfall shall be allocated to such Subordinate
Loans in reverse order of priority (i.e., first to the most Subordinate Loan,
and then, to the extent that such shortfall still exists, to the next
Subordinate Loan, etc.) or otherwise set forth in the related Co-Lender
Agreement. The applicable Master Servicer shall not be permitted to withdraw any
funds from the portion of the Certificate Account that does not constitute the
Serviced Companion Loan Custodial Account with respect to any liabilities, costs
and expenses that are allocable to the Serviced Companion Loan unless there are
no remaining funds in the Serviced Companion Loan Custodial Account that are
available and required to be used to pay such liability, cost or expense paid in
accordance with the related Co-Lender Agreement. If the applicable Master
Servicer is entitled to make any payment or reimbursement described above and
such payment or reimbursement relates solely to the Serviced Companion Loan, but
is not limited to a specific source of funds (other than the requirement that it
must be made by withdrawal from the Serviced Companion Loan Custodial Account,
insofar as it relates to such Serviced Companion Loan, and is permitted pursuant
to the related Co-Lender Agreement), the applicable Master Servicer shall, if
funds on deposit in the Serviced Companion Loan Custodial Account are
insufficient therefor, request the holder of such Serviced Companion Loan to
make such payment or reimbursement to the extent the holder of such Serviced
Companion Loan is obligated to make such payment or reimbursement pursuant to
the related Co-Lender Agreement. If the holder of the applicable Serviced
Companion Loan fails to make such payment or reimbursement that it is obligated
to make within three Business Days following such request, the applicable Master
Servicer shall be entitled to make such payment or reimbursement from the
Certificate Account (with Advance Interest, if applicable). If such payment or
reimbursement is subsequently recovered from the holder of such Serviced
Companion Loan to the extent that any amounts were previously taken by the
applicable Master Servicer from the Certificate Account, the amount recovered
shall be deposited into the Certificate Account and shall not be deposited into
the Serviced Companion Loan Custodial Account. To the extent that amounts in the
Serviced Companion Loan Custodial Account are not sufficient to fully reimburse
the applicable Master Servicer or the applicable Special Servicer for any fees
and expenses relating solely to a Serviced Companion Loan, the applicable Master
Servicer or the applicable Special Servicer, as applicable, shall be entitled to
seek reimbursement from the holder of the related Serviced Companion Loan.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts: If any
Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the requirement that the
Mortgagor shall have made three consecutive scheduled payments under its
modified terms, would then constitute) a Rehabilitated Mortgage Loan,
together with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to the Person
who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance,
together with such Advance Interest, shall constitute a "Workout-Delayed
Reimbursement Amount" to the extent that such amount has not been
determined to constitute a Nonrecoverable Advance. All references herein
to "Workout-Delayed Reimbursement Amount" shall be construed always to
mean the related Advance and any Advance Interest thereon, together with
any further Advance Interest that accrues on the unreimbursed portion of
such Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions: Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of and
conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions thereof)
authorizes the Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole
discretion. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the applicable Master Servicer's (or, if applicable, the
Trustee's) exercise of its sole discretion authorized by subsection (iv)
below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: Each
Master Servicer, each Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed
(and the reimbursement and payment shall be made from) the aggregate
amounts in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount (but not including any such amounts that
constitute Advances) and net of any Nonrecoverable Advances then
outstanding and reimbursable from such amounts in the Certificate Account
allocable to principal in accordance with Section 5.2(a)(II)(iv) below. As
and to the extent provided in clause (II)(A) of the definition thereof,
the Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such payment or
reimbursement of a Workout-Delayed Reimbursement Amount is made from
amounts in the Certificate Account allocable to principal pursuant to the
preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer, the applicable Special Servicer or Trustee to reimbursement for
any Nonrecoverable Advance (including Workout Delayed Reimbursement
Amounts that have been determined by a Master Servicer, a Special Servicer
or the Trustee to be Nonrecoverable Advances) (or payment of Advance
Interest thereon from a source other than Late Fees and default interest
on the related Mortgage Loan) during any Collection Period, then,
notwithstanding any contrary provision of subsection (I) above, (a) to the
extent that one or more such reimbursements and payments of Nonrecoverable
Advances (and such Advance Interest thereon) are made, such reimbursements
and payments shall be made, first, from the aggregate principal
collections and recoveries on the Mortgage Loans for such Collection
Period contemplated by clause (I)(A) of the definition of Principal
Distribution Amount (but not including any such amounts that constitute
Advances, and prior to any deduction for Workout-Delayed Reimbursement
Amounts (and Advance Interest thereon) that were reimbursed or paid during
the related Collection Period from principal collections on the Mortgage
Loans, as described by clause (II)(A) of the definition of Principal
Distribution Amount and pursuant to subsection (iii) of Section
5.2(a)(II)), and then from other collections (including interest) on the
Mortgage Loans for such Collection Period, and (b) if and to the extent
that the amount of such a Nonrecoverable Advance (and Advance Interest
thereon), together with all Nonrecoverable Advances (and Advance Interest
thereon) theretofore reimbursed during such Collection Period, would
exceed such principal collections and recoveries on the Mortgage Loans for
such Collection Period (and Advance Interest thereon), the applicable
Master Servicer (and the applicable Special Servicer or the Trustee, as
applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever) (as an
accommodation), if it elects at its sole discretion (subject to the
requirement below that the applicable Master Servicer may not defer any
reimbursement for more than 6 Collection Periods without the consent of
the Operating Adviser and, in any event, 12 Collection Periods in the
aggregate), to abstain from reimbursing itself (notwithstanding that it is
entitled to such reimbursement) during that Collection Period for all or a
portion of such Nonrecoverable Advance (and Advance Interest thereon);
provided, however, that no deferment shall be more than the amount by
which the Nonrecoverable Advances (and Advance Interest thereon) exceed
the amount of principal on collection in the Certificate Account. The
applicable Master Servicer or the applicable Special Servicer, in
considering whether an Advance is a Nonrecoverable Advance, shall be
entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with
respect to other Mortgage Loans which, at the time of such consideration,
the reimbursement of which is being deferred or delayed by the applicable
Master Servicer, the applicable Special Servicer or the Trustee because
there is insufficient principal available for such reimbursement, in light
of the fact that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance or Servicing Advance under
consideration, but also as a potential source of reimbursement of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is or
may be being deferred or delayed. In connection with a potential election
by the applicable Master Servicer, the applicable Special Servicer or the
Trustee to abstain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof during the Collection Period for any
Distribution Date, the applicable Master Servicer (or the applicable
Special Servicer or the Trustee, as applicable) shall further be
authorized to wait for principal collections to be received before making
its determination of whether to abstain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof until the end of the
Collection Period. Notwithstanding the foregoing, the applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as
applicable) may defer the above reimbursement for no more than 6
Collection Periods without the consent of the Operating Adviser and, in
any event, 12 Collection Periods in the aggregate. If the applicable
Master Servicer (or the applicable Special Servicer or the Trustee, as
applicable), determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised or for any other
reason decides not to continue deferral, then the applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as
applicable) will be entitled to immediate reimbursement of such
Nonrecoverable Advance plus interest thereon at the Advance Rate. The
agreement of the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on the
part of such applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable), or a right of the
Certificateholders. No such deferment shall be deemed to create in the
Certificateholders a right to prior payment of distributions over such
Master Servicer's, such Special Servicer's or the Trustee's right to
reimbursement for Advances. Deferred Advances shall continue to earn
interest at the Advance Rate. In all events the decision to defer
reimbursement or seek immediate reimbursement of Nonrecoverable Advances
shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicers, the Special Servicers or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or a Special Servicer or the
Trustee, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with
respect to any Collection Period shall not be construed to impose on such Master
Servicer (or such Special Servicer or the Trustee, as applicable) any obligation
to make such an election (or any entitlement in favor of any Certificateholder
or any other Person to such an election) with respect to any subsequent
Collection Period or to constitute a waiver or limitation on the right of such
Master Servicer (or such Special Servicer or the Trustee, as applicable) to
otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest
thereon). Any election by a Master Servicer, a Special Servicer or the Trustee
to abstain from reimbursing itself for any Nonrecoverable Advance or portion
thereof with respect to any one or more Collection Periods shall not limit the
accrual of Advance Interest on the unreimbursed portion of such Nonrecoverable
Advance for the period prior to the actual reimbursement of such Nonrecoverable
Advance. None of the Master Servicers, the Special Servicers, the Trustee or the
other parties to this Agreement shall have any liability to one another, to any
of the Certificateholders or to the holder of a Serviced Companion 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, none of the Master Servicers, the
Special Servicers or the Trustee shall have the right to abstain from
reimbursing itself for any Nonrecoverable Advance to the extent of the amount
described in clause (I)(A) of the definition of Principal Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and a Master Servicer, a Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the applicable Special Servicer, the applicable Master Servicer or
the Trustee, as applicable, shall give the Rating Agencies at least 15 days'
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Certificate Account allocable to interest on the Mortgage Loans unless
(1) the applicable Special Servicer, the applicable Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize such Special Servicer's, such Master
Servicer's or the Trustee's, as applicable, ability to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the applicable Special Servicer, the applicable
Master Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the applicable Special Servicer or the applicable Master
Servicer, as applicable, has not timely received from the Trustee information
requested by the applicable Special Servicer or the applicable Master Servicer,
as applicable, to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
applicable Special Servicer, the applicable Master Servicer or the Trustee, as
applicable, shall give Rating Agencies notice of an anticipated reimbursement to
it of Nonrecoverable Advances from amounts in the Certificate Account allocable
to interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances.
(v) Reimbursement Rights of the Master Servicers, Special Servicers
and Trustee Are Senior: Nothing in this Agreement shall be deemed to
create in any Certificateholder a right to prior payment of distributions
over the applicable Master Servicer's, the applicable Special Servicer's
or the Trustee's right to reimbursement for Advances plus Advance Interest
(whether those that constitute Workout-Delayed Reimbursement Amounts,
those that have been the subject of the Master Servicer's election
authorized in subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate; provided, however, that as to (i) the Mortgage Loans
set forth on Schedule XII, for which a Scheduled Payment (including any Balloon
Payment) is due in a month on a Due Date (including any grace period) that is
scheduled to occur after the end of the Collection Period in such month, sums
received by the applicable Master Servicer with respect to such Scheduled
Payment but after the end of such Collection Period shall be applied by such
Master Servicer to reimburse any related P&I Advance made pursuant to Section
5.1(h), and such Master Servicer shall remit to the Distribution Account on any
Master Servicer Remittance Date for a Collection Period any such Scheduled
Payments (including any Balloon Payments) received after the end of such
Collection Period but no later than two Business Days immediately preceding such
Master Servicer Remittance Date on such Mortgage Loans set forth on Schedule
XII, and (ii) the Mortgage Loans set forth on Schedule XIII, for which a
voluntary Principal Prepayment is permitted on any day of the month without the
payment of a full month's interest, the applicable Master Servicer with respect
to such Principal Prepayment shall remit to the Paying Agent for deposit into
the Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than two Business Days immediately preceding such Master
Servicer Remittance Date on such Mortgage Loans set forth on Schedule XIII. In
connection with the deposit of any Scheduled Payments and Principal Prepayments
to the Distribution Account in accordance with the immediately preceding
sentence, the applicable Master Servicer shall promptly notify the 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 applicable Master Servicer nor the Paying Agent nor the Trustee
shall be liable or held responsible for any resulting delay or failure or any
claims or costs incurred in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period. For the avoidance of doubt,
with respect to a Scheduled Payment that is due in a month on a Due Date
(including any grace period) that is scheduled to occur after the end of the
Collection Period in such month as set forth in clause (i) above, it is
understood by the applicable Master Servicer and the Paying Agent that the
Master Servicer's reports set forth in Section 8.11 will not list the related
Mortgage Loan to be in default in respect of such Scheduled Payment so long as
such Scheduled Payment is within such scheduled time frame as of the date of
such reports.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2008 (or February, if the related Distribution Date is the
Final Distribution Date), the Paying Agent shall withdraw all related amounts
then in the applicable Interest Reserve Account and deposit such amounts into
the Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Accounts
(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"), which shall include a sub-account in respect of
Excess Interest (the "Excess Interest Sub-account"), to be held in trust for the
benefit of the Holders until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Distribution Account" and (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Reserve Account." The Distribution Account and
the Reserve Account shall be Eligible Accounts. The Distribution Account and the
Reserve Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies of
the Paying Agent held under this Agreement. The Excess Interest Sub-account and
the Reserve Account shall be deemed sub-accounts of the Distribution Account.
Funds in the Distribution Account or the Reserve 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 or the Reserve Account, as applicable, 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 Paying Agent, on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass Through
Certificates, Series 2007-IQ16." None of the Depositor, the Mortgagors, the
Special Servicers, the Master Servicers, the Primary Servicers or the Trustee
shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account or the
Reserve 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, notwithstanding any
provision herein to the contrary.
(b) Except as set forth in the next succeeding sentences, 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
Servicers pursuant to this Agreement, including P&I Advances made by the Master
Servicers and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans into the Excess Interest Sub-account.
Subject to Section 5.1(h), on any Master Servicer Remittance Date, none of the
Master Servicers shall have any duty to remit to the Distribution Account any
amounts other than amounts held in the applicable Certificate Accounts and
collected during the related Collection Period as provided in clauses (v) and
(xi) of Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer
Remittance Date occurring in March of any year, commencing in March 2008 (or
February, if the related Distribution Date is the Final Distribution Date),
related amounts held in the applicable 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 in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicers, the Primary
Servicers, the Special Servicers, the Trustee (including the Trustee's
portion of the Trustee Fee) and itself (including its portion of the
Trustee 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) be deemed to make distributions in respect of the REMIC I
Regular Interests and the REMIC II Regular Interests, to make
distributions to Certificateholders (other than the Holders of the
Floating Rate Certificates) pursuant to Sections 6.5 and 6.11 and to make
distributions to the related Floating Rate Grantor Trust in respect of the
applicable Class of Floating Rate Regular Interest, with a credit for the
amount of the related Net Swap Payment deemed distributed by the Paying
Agent to the applicable Master Servicer's Floating Rate Account pursuant
to Sections 5.3(c) and 6.12; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall, and, with
respect to the related Net Swap Payments, the Capmark Master Servicer shall,
establish and maintain a separate Class A-MFL Floating Rate Account for the
benefit of the Holders of the Class A-MFL Certificates. On or before the Closing
Date, the Paying Agent shall, and, with respect to the related Net Swap
Payments, the Capmark Master Servicer shall, establish and maintain a separate
Class A-JFL Floating Rate Account for the benefit of the Holders of the Class
A-JFL Certificates. Each Floating Rate Account established by the Capmark Master
Servicer as set forth above shall be described herein as a "Master Servicer's
Floating Rate Account." Each Master Servicer's Floating Rate Account and
Floating Rate Account shall at all times be an Eligible Account and relate
solely to the related Class of Floating Rate Certificates. Each Floating Rate
Account established by the Paying Agent shall be entitled: "Xxxxx Fargo Bank,
National Association, as Paying Agent, on behalf of LaSalle Bank National
Association, as Trustee, in trust for Holders of the Xxxxxx Xxxxxxx Capital I
Trust 2007-IQ16, Floating Rate Account, [Class A-MFL or A-JFL]" and the Paying
Agent shall have the exclusive right to withdraw funds therefrom. Each Master
Servicer's Floating Rate Account established by the Capmark Master Servicer
shall be entitled: "[Name of the Master Servicer], as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Trust 2007-IQ16, Floating Rate Account, Class [A-MFL or A-JFL]" and
the Capmark Master Servicer shall have the exclusive right to withdraw funds
therefrom. The Paying Agent shall deposit, or shall be deemed to deposit, into
each Floating Rate Account on or prior to each Distribution Date an amount equal
to those amounts payable under the related Floating Rate Regular Interest (in
each case net of any payments to the Swap Counterparty made pursuant to Section
8.31(b) hereof) pursuant to Article VI hereof and shall deposit into each
Floating Rate Account all amounts received on the related Swap Transaction in
respect of such Distribution Date. With respect to each Master Servicer's
Floating Rate Account, the Paying Agent, pursuant to Section 6.12, shall be
deemed to have transferred, and to have directed the Capmark Master Servicer to
deposit, into each such Master Servicer's Floating Rate Account on or prior to
each Master Servicer Remittance Date an amount equal to that portion payable
under the related Class of Floating Rate Regular Interests pursuant to Article
VI hereof that is equal to the related Net Swap Payments due to the Swap
Counterparty under the related Swap Transaction. Amounts in each Floating Rate
Account shall be held uninvested. The Paying Agent shall make withdrawals from
each Floating Rate Account in the following order of priority and only for the
following purposes:
(i) to withdraw amounts deposited in each such Floating Rate Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to make distributions to the Holders of the related Class of
Floating Rate Certificates pursuant to Section 6.12;
(iii) to withdraw termination payments to purchase a replacement
swap transaction, 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 related Swap
Transaction 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 such Floating Rate
Account with respect to any such costs and expenses which are in excess of
any related termination payment received from the Swap Counterparty and
not otherwise applied to offset the expense of entering into a replacement
swap transaction if it has received the written consent of 100% of the
Holders of the related Class of Floating Rate Certificates, or has
received a Rating Agency Confirmation (with respect to the related Class
of Floating Rate Certificates) from each Rating Agency (the expense of
such confirmation to be paid by the Holders of such Class of Floating Rate
Certificates); and
(v) to clear and terminate such Floating Rate Account pursuant to
Section 9.1.
(d) Pursuant to Section 8.31(b), by the close of business on the
second Business Day prior to each Distribution Date the Paying Agent shall
notify the Capmark Master Servicer of the amount of any payments from each
Master Servicer's Floating Rate Account to be made to the Swap Counterparty by
the close of business on each Master Servicer Remittance Date, and the Capmark
Master Servicer shall cause such payments to be made in accordance with this
Agreement and the related Swap Transaction.
Section 5.4 Paying Agent Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicers and the Special
Servicers and delivered to the Paying Agent by such Master Servicers (no later
than 12:00 noon, New York City time on the Report Date), the Paying Agent shall
make available to any interested party via its internet website initially
located at "xxxx://xxx.xxxxxxx.xxx" (the "Paying Agent's Website"), (i) the
Monthly Certificateholders Report (substantially in the form of Exhibit M), (ii)
a report containing information regarding the Mortgage Loans as of the end of
the related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the
CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA
Historical Liquidation Loss Report, a CMSA Reconciliation of Funds Report, a
CMSA REO Status Report and an CMSA Loan Level Reserve/LOC Report, each
containing substantially the information contemplated in the definition of
Unrestricted Servicer Reports and (v) as a convenience for interested parties
(and not in furtherance of the distribution thereof under the securities laws),
the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicers and the
Special Servicers and delivered to the 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 December 2007). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder and any prospective Certificateholder or Certificate
Owner, each of the parties to this Agreement, each of the Rating Agencies, each
of the Underwriters, the Operating Adviser, the Placement Agent and any
Certificate Owner upon receipt (which may be in electronic form) from such
Person of an Investor Certificate in the form of Exhibit Y, and any other Person
upon the direction of the Depositor, any Placement Agent or any Underwriter. For
assistance with the above-mentioned 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 Servicers or the Special Servicers 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 any Master Servicer, any 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 the holder of a
Serviced Companion Loan) 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 the holder of a Serviced Companion Loan) such
reports and access to non privileged information and documentation regarding the
Mortgage Loans and the Certificates as such Certificateholder (or the holder of
a Serviced Companion Loan) may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or successor or other
regulatory authorities with respect to investment in the Certificates; provided
that the Paying Agent shall be entitled to be reimbursed by such
Certificateholder (or the holder of a Serviced Companion Loan) for the Paying
Agent's actual expenses incurred in providing such reports and access. The
holder of a Serviced Companion Loan shall be entitled to receive information and
documentation only with respect to the related Serviced Loan Group 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 xxxxx xxx be 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
Depositor, the Master Servicers, the Special Servicers, the Primary Servicers,
the Trustee, the Operating Adviser, any Certificateholder, prospective
Certificate Owner or any Person reasonably designated by any Placement Agent, or
any Underwriter upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney 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 Servicers, the Special Servicers, the Trustee, the
Operating Adviser, the Placement Agent or any Underwriter or any Rating Agency)
of a sum sufficient to cover the reasonable expenses actually incurred by the
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 Trustee or the Custodian shall make available at its
Corporate Trust Office (either in physical or electronic form), during normal
business hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any prospective Certificate Owner, any
Placement Agent, the Underwriters, each Rating Agency, the Special Servicers,
the Depositor and, solely with respect to a Serviced Loan Group, the holder of
the related Serviced Companion Loan, originals or copies of, among other things,
the following items: (i) the most recent property inspection reports in the
possession of the Trustee in respect of each Mortgaged Property and REO
Property, (ii) the most recent Mortgaged Property/REO Property annual operating
statement and rent roll, if any, collected or otherwise obtained by or on behalf
of the Master Servicers or the Special Servicers and delivered to the Trustee or
the Custodian, and (iii) any Phase I Environmental Report or engineering report
prepared or appraisals performed in respect of each Mortgaged Property and
delivered to the Trustee or the Custodian; provided, however, that the Trustee
or the Custodian shall be permitted to require payment by the requesting party
(other than either Rating Agency or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Trustee or the
Custodian of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
Section 5.5 Paying Agent Tax Reports
The Paying Agent shall perform all reporting and other tax
compliance duties that are the responsibility of each REMIC Pool, each Floating
Rate Grantor Trust and the Class EI Grantor Trust under the Code, the REMIC
Provisions or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority, as applicable. Consistent with this
Pooling and Servicing Agreement, the Paying Agent shall provide or cause to be
provided (i) to the United States Department of Treasury or other Persons
(including, but not limited to, the Transferor of a Class R-I, Class R-II or
Class R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the application
of any tax relating to the transfer of a Class R-I, Class R-II or Class R-III
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or the REMIC Provisions.
Each Master Servicer and the Depositor 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, each Floating Rate Grantor Trust and the Class EI Grantor Trust as the
Paying Agent may reasonably request from time to time. Each Special Servicer is
required to provide to the applicable Master Servicers all information in its
possession with respect to the Specially Serviced Mortgage Loans and REO
Property in order for such Master Servicers to comply with its obligations under
this Section 5.5. The Paying Agent shall be entitled to conclusively rely on any
such information provided to it by the Depositor, the Master Servicers or the
Special Servicers and shall have no obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the 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 each Master Servicer, withdraw from the Distribution Account and
pay to such Master Servicer, the Primary Servicers and the Special Servicers any
unpaid servicing compensation or other amounts currently required to be paid
pursuant to this Agreement (to the extent not previously retained or withdrawn
by the Master Servicers from the applicable Certificate Accounts), and (2)
second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding interests in 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 Net Swap Payment that was
deemed distributed by the Paying Agent to the applicable Master Servicer's
Floating Rate Account on the immediately preceding Master Servicer Remittance
Date pursuant to Section 8.31(b)) to itself on behalf of the Trustee, as holder
of the REMIC I Regular Interests, for the following purposes and in the
following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, Distributable Certificate
Interest to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount,
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, principal to the
Corresponding REMIC I Regular Interest, until the Certificate Balance
thereof is reduced to zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests, plus interest on such Realized
Losses at the related REMIC I Net Mortgage Rate previously allocated
thereto; and
(iv) thereafter, to the Class R-I Certificateholders, at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests
have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts remaining with respect to each Mortgage Loan or
related REO Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Net Swap Payment that was
deemed distributed by the Paying Agent to the applicable Master Servicer's
Floating Rate Account on the immediately preceding Master Servicer Remittance
Date pursuant to Section 8.31(b)) to itself, as holder of the REMIC II Regular
Interests, amounts distributable to any Class of Principal Balance Certificates
(other than the Floating Rate Certificates) and Floating Rate Regular Interests
pursuant to Section 6.5 or Section 10.1 on each Corresponding REMIC II Regular
Interest; provided that interest shall be deemed to have been distributed pro
rata among two or more Corresponding REMIC II Regular Interests that correspond
to a Class of Principal Balance Certificates (other than the Floating Rate
Certificates) and Floating Rate Regular Interests; and provided, further, that
distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1-1; and second, to REMIC II Regular Interest A-1-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(ii) with respect to the Class A-1A Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1A-1; second, to REMIC II Regular Interest A-1A-2;
third, to REMIC II Regular Interest A-1A-3; fourth, to REMIC II Regular
Interest A-1A-4; fifth, to REMIC II Regular Interest A-1A-5; sixth, to
REMIC II Regular Interest A-1A-6; seventh, to REMIC II Regular Interest
A-1A-7; eighth, to REMIC II Regular Interest A-1A-8; and ninth, to REMIC
II Regular Interest A-1A-9; in each case, until their respective
Certificate Balances are reduced to zero;
(iii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-2-1; and second, to REMIC II Regular Interest A-2-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(iv) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-3-1; and second, to REMIC II Regular Interest A-3-2;
in each case, until their respective Certificate Balances are reduced to
zero;
(v) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-4-1; second, to REMIC II Regular Interest A-4-2;
third, to REMIC II Regular Interest A-4-3; fourth, to REMIC II Regular
Interest A-4-4; fifth, to REMIC II Regular Interest A-4-5; and sixth, to
REMIC II Regular Interest A-4-6; in each case, until their respective
Certificate Balances are reduced to zero;
(vi) with respect to the Class C Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(vii) with respect to the Class D Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest D-1; and second, to REMIC II Regular Interest D-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(viii) with respect to the Class E Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest E-1; and second, to REMIC II Regular Interest E-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(ix) with respect to the Class G Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest G-1; and second, to REMIC II Regular Interest G-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(x) with respect to the Class H Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in
each case, until their respective Certificate Balances are reduced to
zero; and
(xi) with respect to the Class K Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest K-1; and second, to REMIC II Regular Interest K-2; in
each case, until their respective Certificate Balances are reduced to
zero.
On each Distribution Date, all distributions made in respect of the
Class X-1 and Class X-2 Certificates on each Distribution Date pursuant to
Section 6.5 or Section 10.1, and allocable to any particular Component of each
such Class of Certificates in accordance with the last paragraph of Section
6.5(a), shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of such Component's Corresponding REMIC II Regular Interest.
All distributions of reimbursements of Realized Losses made in
respect of any Class of Principal Balance Certificates (other than the Floating
Rate Certificates) and Floating Rate Regular Interests 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;
provided, however, that distributions of reimbursements of Realized Losses or
Expense Losses shall be made in reverse sequential order and priority as such
Realized Losses or Expense Losses were previously allocated to a particular
Component of such Class of Certificates. Any amounts remaining in the
Distribution Account with respect to REMIC II on any Distribution Date after the
foregoing distributions shall be distributed to the holders of the Class R-II
Certificates.
Section 6.4 [Reserved]
Section 6.5 REMIC III
(a) On each Distribution Date, the 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 Excess
Liquidation Proceeds, which shall be distributed in accordance with Section
6.5(b), the amount attributable to Excess Interest, which shall be distributed
in accordance with Section 6.5(c), and an amount equal to any Net Swap Payment
that was deemed distributed in respect of the related Floating Rate Regular
Interest on the immediately preceding Master Servicer Remittance Date pursuant
to Section 8.31(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 Certificates, Class A-4
Certificates, Class X-1 and Class X-2 Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and Class A-4 Certificates, the
Distributable Certificate Interest in respect of such Class for such
Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 1), pro
rata in proportion to the Distributable Certificate Interest 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);
(C) to the Holders of the Class X-1 and Class X-2
Certificates, the Distributable Certificate Interest in respect of
each such Class for such Distribution Date, pro rata in proportion
to the Distributable Certificate Interest payable in respect of each
such Class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A Senior Certificates and the Class X-1 and Class
X-2 Certificates on such Distribution Date as described above, the
Available Distribution Amount will be allocated among the Class A
Senior Certificates and the Class X-1 and Class X-2 Certificates,
pro rata in proportion to the respective amounts of interest payable
thereon for such Distribution Date, without regard to Loan Group;
(ii) (A) to the holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates,
(1) first, to the Holders of the Class A-1 Certificates,
the Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Certificate Balances of the
Class A-1A, Class A-MA and Class A-JA Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA
and Class A-JA Certificates have been made on the applicable
Distribution Date, until the Class A-1 Certificates are
reduced to zero;
(2) second, to the Holders of the Class A-2
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balances
of the Class A-1A, Class A-MA and Class A-JA Certificates have
been reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA and Class A-1 Certificates have been made on the
applicable Distribution Date, until the Class A-2 Certificates
are reduced to zero;
(3) third, to the Holders of the Class A-3 Certificates,
the Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Certificate Balances of the
Class A-1A, Class A-MA and Class A-JA Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA, Class A-1 and Class A-2 Certificates have been
made on the applicable Distribution Date, until the Class A-3
Certificates are reduced to zero; and
(4) fourth, to the Holders of the Class A-4
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balances
of the Class A-1A, Class A-MA and Class A-JA Certificates have
been reduced to zero, the Loan Group 2 Principal Distribution
Amount remaining after payments to the Class A-1A, Class A-MA,
Class A-JA, Class A-1, Class A-2 and Class A-3 Certificates
have been made on the applicable Distribution Date, until the
Class A-4 Certificates are reduced to zero;
(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, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates and the Class A-MFL and Class A-JFL
Regular Interests have been made on the applicable Distribution
Date, until the Certificate Balance of the Class A-1A Certificates
has been reduced to zero;
(iii) to the Holders of the Class A Senior Certificates and the
Class X-1 and Class X-2 Certificates, pro rata (treating principal and
interest losses separately) in proportion to their respective entitlements
to reimbursement described in this clause, to reimburse any Realized
Losses or Expense Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through
Rate on such Realized Losses or Expense Losses;
(iv) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, concurrently;
(A) to the Holders of the Class A-M Certificates and the Class
A-MFL 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; and
(B) to the Holders of the Class A-MA 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);
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-M Certificates, Class A-MA Certificates or the
Class A-MFL Regular Interest on such Distribution Date as described
above, the Available Distribution Amount will be allocated between
the Class A-M Certificates, the Class A-MA Certificates and the
Class A-MFL Regular Interest, pro rata in proportion to the
respective amounts of interest payable thereon for such Distribution
Date, without regard to Loan Group;
(v) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, concurrently;
(A) to the Holders of the Class A-M Certificates and the Class
A-MFL Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balances of the Class A-1A, Class A-MA and Class A-JA
Certificates have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A,
Class A-MA and Class A-JA Certificates, and the Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates have been made on the
applicable Distribution Date, until the Class A-M Certificates and
the Class A-MFL Regular Interest are reduced to zero; and
(B) to the Holders of the Class A-MA Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balances of the Class A-4, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates, the Class A-MFL and Class A-JFL
Regular Interests, and the Class A-1A Certificates have been made on
the applicable Distribution Date, until the Certificate Balance of
the Class A-MA Certificates has been reduced to zero;
(vi) to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, to reimburse
any Realized Losses or Expense Losses previously allocated to each such
Class and not previously fully reimbursed, plus one month's interest at
the applicable Pass-Through Rate on such Realized Losses or Expense
Losses;
(vii) to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, concurrently;
(A) to the Holders of the Class A-J Certificates and the Class
A-JFL 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; and
(B) to the Holders of the Class A-JA 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);
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-J Certificates, the Class A-JA Certificates or
the Class A-JFL Regular Interest on such Distribution Date as
described above, the Available Distribution Amount will be allocated
between the Class A-J Certificates, the Class A-JA Certificates and
the Class A-JFL Regular Interest, pro rata in proportion to the
respective amounts of interest payable thereon for such Distribution
Date, without regard to Loan Group;
(viii) to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, concurrently;
(A) to the Holders of the Class A-J Certificates and the Class
A-JFL Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balances of the Class A-1A, Class A-MA and Class A-JA
Certificates have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A,
Class A-MA and Class A-JA Certificates, and the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-M Certificates and the Class
A-MFL Regular Interest have been made on the applicable Distribution
Date, until the Class A-J Certificates and the Class A-JFL Regular
Interest are reduced to zero; and
(B) to the Holders of the Class A-JA Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balances of the Class A-4, Class A-M and
Class A-J Certificates and the Class A-MFL and Class A-JFL Regular
Interests have been reduced to zero, the Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after
payments to the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-M and Class A-J Certificates, the Class A-MFL and Class A-JFL
Regular Interests, and the Class A-1A and Class A-MA Certificates
have been made on the applicable Distribution Date, until the
Certificate Balance of the Class A-JA Certificates has been reduced
to zero;
(ix) to the Holders of the Class A-J Certificates, Class A-JA
Certificates and Class A-JFL Regular Interest, pro rata, to reimburse any
Realized Losses or Expense Losses previously allocated to each such Class
and not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses or Expense Losses;
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class
A-J Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates and the Class A-MFL and
Class A-JFL Regular Interests hereunder), until the Certificate Balance of
the Class B Certificates has been reduced to zero;
(xii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B Certificates hereunder),
until the Certificate Balance of the Class C Certificates has been reduced
to zero;
(xv) to the Holders of the Class C Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the Class
C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B and Class C Certificates
hereunder), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C and Class D
Certificates hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xxi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the Class
E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D and Class
E Certificates hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxiv) to the Holders of the Class F Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the Class
F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E
and Class F Certificates hereunder), until the Certificate Balance of the
Class G Certificates has been reduced to zero;
(xxvii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxviii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of the Class
G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F and Class G Certificates hereunder), until the Certificate Balance
of the Class H Certificates has been reduced to zero;
(xxx) to the Holders of the Class H Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of the Class
H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates hereunder), until the
Certificate Balance of the Class J Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class J Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the Class
J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates hereunder), until the
Certificate Balance of the Class K Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxvii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Senior Certificates, the Class
A-M, Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL
and Class A-JFL Regular Interests, and the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates
hereunder), until the Certificate Balance of the Class L Certificates has
been reduced to zero;
(xxxix) to the Holders of the Class L Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K and Class L Certificates
hereunder), until the Certificate Balance of the Class M Certificates has
been reduced to zero;
(xlii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) upon payment in full of the Certificate Balance of the Class
M Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L and Class M
Certificates hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xlv) to the Holders of the Class N Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of the Class
N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class O Certificates, to reimburse
any Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class O
Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and 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 and
Class O Certificates hereunder), until the Certificate Balance of the
Class P Certificates has been reduced to zero;
(li) to the Holders of the Class P Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(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 to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and 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 and Class P Certificates 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 or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(lv) to the Holders of the Class S Certificates, Distributable
Certificate Interest for such Distribution Date;
(lvi) upon payment in full of the Certificate Balance of the Class Q
Certificates, to the Holders of the Class S Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Senior Certificates, the Class A-M,
Class A-MA, Class A-J and Class A-JA Certificates, the Class A-MFL and
Class A-JFL Regular Interests, and 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 and Class Q Certificates 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 or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses; and
(lviii) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates
and the Floating Rate Regular Interests have been reduced to zero, and
Realized Losses or Expense Losses previously allocated to each Holder have
been reimbursed to the Holders of the REMIC Regular Certificates and the
Floating Rate Regular Interests, any amounts remaining on deposit in the
Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
all the Classes of Subordinate Certificates (other than the Class A-MFL and
Class A-JFL Certificates) and the Class A-MFL and Class A-JFL Regular Interests
have been reduced to zero or the aggregate Appraisal Reduction in effect is
greater than or equal to Certificate Balances of all the Classes of Subordinate
Certificates (other than the Class A-MFL and Class A-JFL Certificates) and the
Class A-MFL and Class A-JFL Regular Interests, the Principal Distribution Amount
will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero; and
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
the Class A-J Certificates, the Class A-JA Certificates and the Class A-JFL
Regular Interest, and the Class B through Class S Certificates have been reduced
to zero or the aggregate Appraisal Reduction in effect is greater than or equal
to Certificate Balances of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest and the Class B through Class
S Certificates, the Principal Distribution Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero;
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
o third, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero; and
o fourth, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
the Class B through Class S Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of the Class B through Class S Certificates, the Principal Distribution
Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on their respective
Certificate Balances, without regard to Loan Group, in reduction of
their respective Certificate Balances, until the Certificate Balance
of each such Class is reduced to zero;
o second, to the Holders of the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses or Expense Losses
previously allocated to each such Class, plus one month's interest
on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group;
o third, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero;
o fourth, to the Holders of the Class A-M Certificates, the Class A-MA
Certificates and the Class A-MFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group;
o fifth, to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, pro rata, based
on their respective Certificate Balances, without regard to Loan
Group, in reduction of their respective Certificate Balances, until
the Certificate Balance of each such Class is reduced to zero; and
o sixth, to the Holders of the Class A-J Certificates, the Class A-JA
Certificates and the Class A-JFL Regular Interest, pro rata, based
on the respective amounts of unreimbursed Realized Losses or Expense
Losses previously allocated to each such Class, plus one month's
interest on such Realized Losses or Expense Losses at the applicable
Pass-Through Rate, without regard to Loan Group.
Such distribution of the Principal Distribution Amount to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-MA,
Class A-J and Class A-JA Certificates, respectively, shall be deemed to be made
to REMIC II Regular Interests A-1-1 and A-1-2, REMIC II Regular Interests
X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0 and A-1A-9, REMIC
II Regular Interests A-2-1 and A-2-2, REMIC II Regular Interests A-3-1 and
A-3-2, REMIC II Regular Interests X-0-0, X-0-0, X-0-0, X-0-0, X-0-0 and A-4-6,
REMIC II Regular Interest A-M, REMIC II Regular Interest A-MFL, REMIC II Regular
Interest A-MA, REMIC II Regular Interest A-J, REMIC II Regular Interest A-JFL
and REMIC II Regular Interest A-JA, as applicable, in the same order and
priority as the distributions described in Section 6.3(a).
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates (other than the Floating
Rate Certificates), the Floating Rate Regular Interests and the Class X-1
Certificates and Class X-2 Certificates, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class A Senior
Certificates and the Class X-1 and Class X-2 Certificates, pro rata
(treating principal and interest losses separately), and then the
remaining amounts to reimburse the Subordinate Certificates (other than
the Class A-MFL and Class A-JFL Certificates) and the Class A-MFL and
Class A-JFL Regular Interests (in order of alphabetical Class designation,
but as between the Class A-M Certificates, the Class A-MA Certificates and
the Class A-MFL Regular Interest, on the one hand, and the Class A-J
Certificates, the Class A-JA Certificates and the Class A-JFL Regular
Interest, on the other hand, in that order) for any, and to the extent of,
Realized Losses or Expense Losses previously allocated to them and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses; and
(ii) second, upon the reduction of the Aggregate Certificate Balance
of the Principal Balance Certificates (other than the Class A-MFL and
Class A-JFL Certificates) and the Class A-MFL and Class A-JFL Regular
Interests to zero, to pay any amounts remaining on deposit in such account
to the Holders of the R-I Certificates.
Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to
be applied to reimbursement of Realized Losses or Expense Losses previously
allocated to the REMIC II Regular Interests in the reverse sequential order and
priority as such Realized Losses or Expense Losses were applied thereto, and to
the REMIC I Regular Interests, pro rata, as to those REMIC I Regular Interests
that incurred a Realized Loss or Expense Loss. Any amounts remaining in the
Reserve Account after the Aggregate Certificate Balance of all Certificates and
Interests have been reduced to zero shall be distributed to the Class R-I
Certificates.
(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 distribute such Excess Interest on such Distribution Date to
the Class EI Certificates.
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during
the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interests; and 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) applicable to the
Mortgage Loans and realized during the related Collection Period shall be
allocated among the REMIC I Regular Interests in proportion to their
Certificate Balances after making all other allocations for such
Distribution Date.
(b) In the event that a Master Servicer, a Special Servicer or the
Trustee determines that an Advance previously made by it (whether such Advance
(together with Advance Interest thereon) was in respect of principal or interest
on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance
and such Master Servicer withdraws the amount of such Advance from the
applicable Certificate Account pursuant to Section 5.2(a) hereof (which amount
shall be treated as an Available Advance Reimbursement Amount pursuant to
Section 4.6 or if the Master Servicer determines any Unliquidated Advance has
become a Nonrecoverable Advance), the applicable Master Servicer (after
consultation with the applicable Special Servicer) shall compute the Realized
Loss with respect to such Mortgage Loan (and the Trustee shall allocate the
Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate
amount in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount, and shall be allocated to the Corresponding
REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and to the
extent that any Realized Principal Loss exceeds the Certificate Balance of
the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other REMIC I Regular Interests in accordance
with Section 6.6(a)(iii)), and such withdrawal shall reduce the principal
paid on each such REMIC I Regular Interest, on which principal would
otherwise be paid on such Distribution Date, in proportion to such
principal payments; and
(ii) if the amount that the applicable Master Servicer withdraws
from the Certificate Account as referenced in clause (b)(i) above exceeds
such amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be
allocated to the REMIC I Regular Interests on a pro rata basis based upon
the amount of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the applicable Master
Servicer previously had withdrawn amounts from the applicable Certificate
Account following a determination that Advances previously made were
Nonrecoverable Advances and Realized Losses were computed and allocated pursuant
to clauses (a) and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on a Mortgage
Loan that is identified and applied by the applicable Master Servicer as
recoveries of principal shall be applied first, to make payments of
principal on the Corresponding REMIC I Regular Interest up to an amount
equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest
(and the Principal Balance of the Mortgage Loan and the related
Certificate Balance of the Corresponding REMIC I Regular Interest shall be
correspondingly increased), and thereafter to make payments of principal
to the REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(i) above, in
proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that
is identified and applied by the applicable Master Servicer as recoveries
of interest shall be applied to make payments of Unpaid Interest on the
REMIC I Regular Interests, with respect to which Unpaid Interest was
allocated pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f); provided, however, that Realized Losses and Expense Losses
allocated to REMIC II Regular Interests shall be allocated among the
Corresponding Components sequentially in alphabetical and numerical order, but
as between the Class A-M Certificates, the Class A-MA Certificates and the Class
A-MFL Regular Interest, on the one hand, and the Class A-J Certificates, the
Class A-JA Certificates and the Class A-JFL Regular Interest, on the other hand,
in that order). Realized Interest Losses allocated to the Class X-1 and Class
X-2 Certificates shall reduce the amount of interest payable on each REMIC II
Regular Interest, which reduction shall be allocated pro rata based on the
product of the Certificate Balance of such REMIC II Regular Interest and the sum
of the Class X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to
the Class of Certificates relating to such REMIC II Regular Interest.
(e) [Reserved]
(f) REMIC III. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC II Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular Certificates and the Floating Rate Regular
Interests in Reverse Sequential Order, with such reductions being allocated (A)
among the Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4 Certificates
and, in the case of interest, the Class X-1 and Class X-2 Certificates, pro rata
(treating principal and interest losses separately), (B) among the Class A-M
Certificates, the Class A-MA Certificates and the Class A-MFL Regular Interest,
pro rata, and (C) among the Class A-J Certificates, the Class A-JA Certificates
and the Class A-JFL Regular Interest, pro rata, in each case of clauses (A), (B)
and (C), reducing (x) the Certificate Balance of such Class (excluding the Class
X Certificates) until such Certificate Balance is reduced to zero; (y) Unpaid
Interest owing to such Class to the extent thereof; and (z) Distributable
Certificate Interest owing to such Class, provided that Realized Losses and
Expense Losses shall not reduce the Aggregate Certificate Balance of the REMIC
Regular Certificates and the Floating Rate Regular Interests below the sum of
the Aggregate Certificate Balances of the REMIC II Regular Interests.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I shall be allocated among the REMIC I
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC I Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the
REMIC I Regular Interests held by REMIC II shall be allocated among the REMIC II
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC II Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any such Net Aggregate Prepayment Interest
Shortfalls on the REMIC Regular Certificates and the Floating Rate Regular
Interests shall be allocated to each such Class, pro rata, in proportion to the
amount of Accrued Certificate Interest payable to such Class on such
Distribution Date, in each case reducing interest otherwise payable thereon. The
amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
REMIC Regular Certificates and the Floating Rate Regular Interests pursuant to
the preceding sentence shall reduce the Distributable Certificate Interest for
such Class for such Distribution Date.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to each Master Servicer shall be
adjusted as provided in Section 8.10(c) herein. Any amount retained by REMIC I
as a result of a reduction of the Master Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
Section 6.9 Appraisal Reductions
Not later than the date on which an Appraisal Event occurs, the
applicable Special Servicer shall have obtained (A) an Appraisal of the
Mortgaged Property securing the related Mortgage Loan (or Serviced Loan Group)
if the Principal Balance of such Mortgage Loan (or Serviced Loan Group) exceeds
$2,000,000 or (B) at the option of such Special Servicer, if such Principal
Balance is less than or equal to $2,000,000, either an internal valuation
prepared by such Special Servicer in accordance with MAI standards (which
internal valuation shall ascribe a value for any residential cooperative
property based on the value of such property as if operated as a residential
cooperative) or an Appraisal which in all cases shall be completed as of the
date that such Mortgage Loan (or Serviced Loan Group) becomes a Required
Appraisal Loan; provided that if the applicable Special Servicer had completed
or obtained an Appraisal or internal valuation within the immediately prior 12
months, such Special Servicer may rely on such Appraisal or internal valuation
and shall have no duty to prepare a new Appraisal or internal valuation, unless
such reliance would not be in accordance with the Servicing Standard; provided,
further, that if the applicable Special Servicer is required to obtain an
Appraisal of a Mortgaged Property or prepare an internal valuation after receipt
of the notice described in clause (ii) of the definition of Appraisal Event,
such Appraisal or internal valuation will be obtained or prepared, as the case
may be, no later than 60 days after receipt of such notice. With respect to each
Mortgage Loan that is cross-collateralized with any other Mortgage Loan, the
Appraisal or internal valuation need only be performed with respect to Mortgaged
Properties that constitute the principal security for the individual Mortgage
Loan to which an Appraisal Event occurs, and not with respect to all of the
Mortgaged Properties that constitute security for the individual Mortgage Loan
in the cross-collateralized group. Such Appraisal or valuation shall be
conducted in accordance with the definition of "market value" as set forth in 12
C.F.R. ss. 225.62 and shall be updated at least annually from the date of such
Appraisal or valuation, as applicable, to the extent such Mortgage Loan remains
a Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the applicable Special Servicer, shall be an expense of the Trust
and may be paid from REO Income or, to the extent collections from such related
Mortgage Loan (or Serviced Loan Group) or Mortgaged Property does not cover the
expense, such unpaid expense shall be, subject to Section 4.4 hereof, advanced
by the applicable Master Servicer at the request of the applicable Special
Servicer pursuant to Section 4.6 in which event it shall be treated as a
Servicing Advance. The applicable Special Servicer shall calculate any Appraisal
Reduction. The applicable Master Servicer shall recalculate the Appraisal
Reduction for any Mortgage Loan and Serviced Loan Group based on the original
Appraisal or updated Appraisals or internal valuations provided from time to
time to it by the applicable Special Servicer and report such amount to the
Trustee. The applicable Special Servicer shall provide notice of any Appraisal
Event with respect to a Mortgage Loan to the applicable Master Servicer and the
Operating Adviser on the day of determination of such Appraisal Event.
Section 6.10 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement to the
contrary, the Paying Agent shall comply with all federal withholding
requirements with respect to the Swap Transactions and payments to
Certificateholders of interest, original issue discount, or other amounts that
the Paying Agent reasonably believes are applicable under the Code, giving
effect to all applicable exemptions from withholding as to which the recipient
has furnished the applicable and effective certification or other documentation.
The consent of Certificateholders shall not be required for any such withholding
and any amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the 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 Paying Agent on behalf of the Trust will deliver or cause to be
delivered the federal taxpayer identification number of each Grantor Trust that
holds a Swap Transaction on an IRS Form W-9 to the Swap Counterparty as soon as
possible after each Swap Transaction is entered into (but no later than the
first payment date under the Swap Transaction), provided that the Paying Agent
has received the applicable taxpayer identification number from the IRS by such
date (and the Paying Agent shall use its best efforts to obtain such taxpayer
identification number from the IRS by such date) and, if requested by the Swap
Counterparty (unless not permitted under federal income tax law) an IRS Form
W-8IMY, (ii) each non-exempt holder of a Floating Rate Certificate will be
obligated pursuant to this Agreement to provide applicable certification to the
Paying Agent (with copies directly from such Certificateholder to the Swap
Counterparty) to enable the Paying Agent to make payments to the Floating Rate
Certificateholders without federal withholding or backup withholding, and (iii)
as authorized by the Floating Rate Certificateholders under this Agreement, the
Paying Agent may forward any such certification received to the Swap
Counterparty if requested.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution
Date on which the Certificate Balance of the Class A Senior Certificates has
been reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected
with respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Paying Agent on the Classes of
Certificates as follows: the Paying Agent shall be deemed to distribute to the
Trustee, as holder of the REMIC II Regular Interests, any Prepayment Premiums or
Yield Maintenance Charges deemed distributed to the REMIC I Regular Interests,
and shall be deemed to distribute such Prepayment Premiums or Yield Maintenance
Charges to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums or Yield Maintenance
Charges shall be deemed distributed among such Classes pro rata in accordance
with the relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, in respect of Prepayment
Premium or Yield Maintenance Charges on each Mortgage Loan in Loan Group 1, the
Holders of the respective Classes of Principal Balance Certificates (other than
the Class A-1A, Class A-MA, Class A-JA, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates and the Floating Rate Certificates)
and the Floating Rate Regular Interests 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, which in no event may be greater than 1.0 or less than 0.0,
the numerator of which is the amount distributed as principal to the Holders of
that Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the Holders of all Classes of Principal
Balance Certificates, except the Class A-1A, Class A-MA and Class A-JA
Certificates and the Floating Rate Certificates, and the Floating Rate Regular
Interests, on that Distribution Date, (b) the Base Interest Fraction for the
related Principal Prepayment and that Class of Certificates (or Floating Rate
Regular Interests, as applicable) and (c) the amount of Prepayment Premiums or
Yield Maintenance Charges collected in respect of such Principal Prepayment
during the related Collection Period. Following the deemed distributions set
forth in the first paragraph of this Section 6.11, Prepayment Premiums or Yield
Maintenance Charges collected in respect of each Mortgage Loan included in Loan
Group 2 during the related Collection Period will be distributed by the Paying
Agent as follows: to the Holders of the Class A-1A, Class A-MA and Class A-JA
Certificates then entitled to distributions of principal on such Distribution
Date, an amount equal to the product of (a) a fraction, which in no event may be
greater than 1.0 or less than 0.0, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of the Class A-1A, Class A-MA and Class A-JA Certificates, (b) the Base
Interest Fraction for the related Principal Prepayment and that Class and (c)
the amount of the Prepayment Premium or Yield Maintenance Charge collected in
respect of such Principal Prepayment during the related Collection Period.
If there is more than one such Class of Principal Balance
Certificates or Floating Rate Regular Interests entitled to distributions of
principal on such Distribution Date, the aggregate amount described in the
preceding sentence will be allocated among such Classes on a pro rata basis in
accordance with the relative amounts of entitlement to such distributions of
principal. Any portion of such Prepayment Premium or Yield Maintenance Charge
that is not so distributed to the Holders of such Principal Balance Certificates
(other than the Floating Rate Certificates) or Floating Rate Regular Interests
will be distributed to the Holders of the Class X-1 and Class X-2 Certificates.
On or prior to the Distribution Date in November 2012, 73% of the Prepayment
Premium or Yield Maintenance Charge that is not so distributed to the Holders of
such Principal Balance Certificates (other than the Floating Rate Certificates)
or Floating Rate Regular Interests will be distributed to the Holders of the
Class X-1 Certificates and 27% of the Prepayment Premium or Yield Maintenance
Charge that is not so distributed to the Holders of such Principal Balance
Certificates (other than the Floating Rate Certificates) or Floating Rate
Regular Interests will be distributed to the Holders of the Class X-2
Certificates. After the Distribution Date in November 2012, any portion of such
Prepayment Premium or Yield Maintenance Charge collected during the related
Collection Period that is not so distributed to the Holders of such Principal
Balance Certificates (other than the Floating Rate Certificates) or Floating
Rate Regular Interests will be distributed to the Holders of the Class X-1
Certificates.
Section 6.12 Other Distributions
(a) On each Master Servicer Remittance Date, the Paying Agent shall
be deemed to distribute to the Capmark Master Servicer, for deposit in the
Master Servicer's Floating Rate Accounts with respect to the related Net Swap
Payment, that amount specified by the Paying Agent pursuant to Section 8.31(b).
In accordance with Section 8.31, the Capmark 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 related Master Servicer's Floating
Rate Account, 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 related Floating Rate Regular Interest and the Corresponding
REMIC I Regular Interest, and Corresponding REMIC II Regular Interest. On each
Distribution Date, the Paying Agent (or the Capmark Master Servicer on the
Paying Agent's behalf) shall distribute the Floating Rate Available Funds for
such Distribution Date to the Holders of record of the related Class of Floating
Rate Certificates as of the related Record Date in the following amounts: (i)
the related Floating Rate Interest Distribution Amount, (ii) the related
Floating Rate Principal Distribution Amount and (iii) only if the related Swap
Transaction has been terminated and no replacement swap transaction has been
entered into, any Prepayment Premiums that were allocated to the related
Floating Rate Regular Interest. No Holder of a Floating Rate Certificate shall
be entitled to receive any portion of any Prepayment Premium paid on the related
Class of Floating Rate Regular Interests, unless the related Swap Transaction
has been terminated and no replacement swap transaction has been entered into.
Such amount shall be payable to the Swap Counterparty pursuant to the terms of
the related Swap Transaction. Following a Swap Default under the related Swap
Transaction or other default or event of termination of the related Swap
Transaction, and during the period when the Paying Agent is pursuing remedies
under the related Swap Transaction, the related Floating Rate Interest
Distribution Amount for the related Class of Floating Rate Certificates shall
equal the Distributable Certificate Interest for the related Floating Rate
Regular Interest, until such time as the conditions giving rise to such Swap
Default or other default or event of termination have been cured or the related
Swap Transaction has been replaced. Any such Swap Default, other default or
event of termination, and the consequent change to a fixed Pass-Through Rate
shall not constitute a default under this Agreement. To the extent that the
Depository 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 related Class of Floating Rate Certificates and such
delay shall 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 Transaction, the Swap Counterparty will remain
liable for the Swap Default or other default or event of termination pursuant to
the related Swap Transaction.
For as long as a Swap Default or other default or event of
termination has occurred and is continuing and the related Class of Floating
Rate Certificates is receiving interest at the fixed Pass-Through Rate, such
Class of Floating Rate Certificates shall accrue interest at the same rate, on
the same basis and in the same manner as the related Floating Rate Regular
Interest.
If any Swap Transaction 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 related Class of Floating Rate 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 related Class of Floating Rate Certificates (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 (or, in the Paying Agent's sole
discretion, reasonably anticipated to be available) to it from such holders for
reimbursement), to enforce the rights of the Trust under such Swap Transaction
as may be permitted by the terms of such Swap Transaction 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 transaction 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 transactions, 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 transaction 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 transaction
will exceed the sum of the net proceeds of the liquidation of the related Swap
Transaction, a replacement interest rate swap transaction 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,
each of 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
related Class of Floating Rate Certificates. Any proceeds of the liquidation of
the related Swap Transaction which exceed the costs attributable to entering
into a replacement interest rate swap transaction (or if no replacement interest
rate swap transaction is entered into) shall be deposited into the related
Floating Rate Account and shall be distributed to the holders of the related
Class of Floating Rate Certificates.
(b) 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.
(c) As long as the related Swap Transaction (or any replacement
thereof) is in effect, each beneficial owner of the related Class of Floating
Rate Certificates, 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.
(d) Notwithstanding anything herein to the contrary, any expenses
incurred by the Paying Agent under this Section 6.12 shall be paid solely by the
related Floating Rate Grantor Trust after the application of funds held in the
related Floating Rate Account 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 Transaction;
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 transaction if it has received the written consent of 100% of
the holders of the related Class of Floating Rate Certificates, or has received
a Rating Agency Confirmation (with respect to the related Class of Floating Rate
Certificates) from each Rating Agency (the expense of such confirmation to be
paid by the holders of the related Class of Floating Rate Certificates). 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 Swap Transaction or
entering into a replacement interest rate swap transaction to the extent amounts
are not available (or, in the Paying Agent's sole discretion, reasonably
anticipated to be available) in the related Floating Rate Grantor Trust after
the application of funds held in the related Floating Rate Account in accordance
with Section 5.3(c).
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE REGISTRAR,
AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as the case
may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicers or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Trustee shall inform the
Certificateholders.
(c) None of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Persons shall have any liability to the Trust
or the Certificateholders arising out of or in connection with this Agreement,
except for their respective negligence or willful misconduct. No provision of
this Agreement shall be construed to relieve the Trustee, the Paying Agent or
any of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Persons from
liability for their own negligent action, their own negligent failure to act or
their own willful misconduct or bad faith; provided that:
(i) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be personally
liable with respect to any action taken, suffered or omitted to be taken
by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not
less than a majority of the outstanding Certificate Balance of the
Certificates;
(ii) no provision of this Agreement shall require either the Trustee
or the Paying Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of any Master Servicer, any Special
Servicer, the Depositor or any Seller, or for the acts or omissions of
each other, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms
or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither the Trustee nor the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee
and the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall be charged with
knowledge of any failure by any Master Servicer, any Special Servicer or
the Swap Counterparty or by each other to comply with its obligations
under this Agreement or the Swap Transactions or any act, failure, or
breach of any Person upon the occurrence of which the Trustee or the
Paying Agent may be required to act, unless a Responsible Officer of the
Trustee or the Paying Agent, as the case may be, obtains actual knowledge
of such failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may rely
and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee and the Paying Agent each may consult with counsel
and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) none of the Trustee, the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person
in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding, provided that, if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee or the
Paying Agent, as applicable, shall be paid by the Certificateholders
requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee
and the Paying Agent conferred on them by such appointment; provided that
each of the Trustee and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of any Master Servicer,
any Special Servicer, the Depositor or the actions or omissions of each
other;
(vi) neither the Trustee nor the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Paying Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither the Trustee nor the Paying Agent shall be liable for
any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Paying Agent shall be required to post any surety or bond
of any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Paying
Agent shall be responsible for any act or omission of any Master Servicer,
any Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The 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 if 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.
(e) If, in connection with any Distribution Date, the Paying Agent
has reported to the Depository the anticipated amount of the distribution to be
made to the Depository on such Distribution Date and the timing of the receipt
from a Master Servicer of any Principal Prepayment or Balloon Payment requires
modification of such anticipated amount of the distribution to be made to the
Depository, the Paying Agent will use commercially reasonable efforts to cause
the Depository to revise the amount of the distribution on a timely basis so
that such Principal Prepayments or Balloon Payments will be included in the
Available Distribution Amount for such Distribution Date. None of the Paying
Agent, the Master Servicers and the Special Servicers will be liable or held
responsible for any resulting delay (or claims by the Depository resulting
therefrom) in the making of such distribution to Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC Regular Certificates, Floating
Rate 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
except for the representations and covenants made by it and set forth in Section
7.16. Neither the Trustee nor the Paying Agent shall be accountable for the use
or application by the Depositor or any Master Servicer or any Special Servicer
or by each other of any of the Certificates or any of the proceeds of such
Certificates, or for the use or application by the Depositor or any Master
Servicer or any Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement, the
Prospectus or the Certificates (except with respect to the Trustee (with respect
to the information provided by the Trustee) and the Paying Agent (with respect
to the information provided by the Paying Agent) to the extent of information
furnished by the Trustee and the Paying Agent under, with respect to the
Preliminary Prospectus Supplement, the information contained therein under the
headings "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and
Dates--Trustee" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee and Custodian" (with respect to the first
through sixth paragraphs), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties
and Dates--Paying Agent" (only with respect to the first sentence thereunder),
and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and
Authenticating Agent" (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), and with respect
to the Final Prospectus Supplement (including the Final Prospectus Supplement as
included as Exhibit A to the Private Placement Memorandum), the information
contained therein under the headings "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Trustee" (only with respect to the first sentence
thereunder), "TRANSACTION PARTIES--The Trustee and Custodian" (with respect to
the first through sixth paragraphs), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder), and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and Authenticating Agent") (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), the Mortgage
Loans or the assignment thereof against the Trustee or the Paying Agent in such
Person's individual capacity and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided herein.
None of the Trustee or the Paying Agent shall be liable for any
action or failure of any action by the Depositor or any Master Servicer (or any
Additional Servicer, Sub-Servicer or subcontractor engaged thereby) or any
Special Servicer (or any Additional Servicer, Sub-Servicer or subcontractor
engaged thereby) or by each other hereunder. None of Trustee or the Paying Agent
shall at any time have any responsibility or liability for or with respect to
the legality, validity or enforceability of the Mortgages or the Mortgage Loans,
or the perfection and priority of the Mortgages or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation, the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon; the validity of the assignment of the Mortgage Loans
to the Trust or of any intervening assignment; the completeness of the Mortgage
Loans; the performance or enforcement of the Mortgage Loans (other than if the
Trustee shall assume the duties of any Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or any Master Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby) or any Special Servicer
(or any Additional Servicer, Sub-Servicer or subcontractor engaged thereby) or
by each other with any warranty or representation made under this Agreement or
in any related document or the accuracy of any such warranty or representation
made under this Agreement or in any related document prior to the receipt by a
Responsible Officer of the Trustee of notice or other discovery of any non
compliance therewith or any breach thereof; any investment of monies by or at
the direction of any Master Servicer or any Special Servicer or any loss
resulting therefrom; the failure of any Master Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby) or any Special Servicer
(or any Additional Servicer, Sub-Servicer or subcontractor engaged thereby) to
act or perform any duties required of it on behalf of the Trustee hereunder; or
any action by the Trustee taken at the instruction of any Master Servicer or any
Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association organized and doing business under the laws of the United States of
America and any state thereof, authorized to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A-1" (without regard to plus or minus) by S&P, "F-1" by Fitch and
"R-1(middle)" by DBRS (or if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least one nationally recognized
statistical rating organization (which may include S&P, Fitch and/or Xxxxx'x))
and whose long term senior unsecured debt is at all times rated not less than
"AA-" by Fitch, "A+" by S&P and "AA(low)" by DBRS (or if not rated by DBRS, an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x)). If such corporation, national bank or national banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.6.
Notwithstanding the foregoing, if the Trustee meets the provisions of this
Section 7.5, but does not meet the provisions of (iii) above, the Trustee shall
be deemed to meet the provisions of (iii) if it appoints a fiscal agent as a
back-up liquidity provider; provided that such fiscal agent shall meet the
requirements of Section 7.5(iii) above and Section 7.18 herein.
The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by S&P, Fitch and DBRS, unless and to the extent Rating
Agency Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicers, the Special Servicers, 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. If no successor trustee
or paying agent shall have been so appointed, as the case may be, and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee or paying agent, as the case may be. It shall be a condition to the
appointment of a successor trustee that such entity satisfies the eligibility
requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII, then the Depositor shall (in the case of
clauses (i) through (iv) above) and may (in the case of clause (v) above) send a
written notice of termination to the Trustee (which notice shall specify the
reason for such termination) and remove such Trustee and the Depositor shall
appoint a successor Trustee by written instrument, one copy of which instrument
shall be delivered to the Trustee so removed, one copy to the successor Trustee,
and one copy to each of the Master Servicers and the Rating Agencies. Such
succession shall take effect after a successor trustee has been appointed and
has accepted such appointment.
(c) If at any time (i) the Paying Agent shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), (iv) the continuation of the Paying Agent as such would result in
a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by any Rating Agency, (v) if the Paying Agent shall fail (other than by reason
of a Master Servicer's or a 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 or untimely receipt or incomplete
receipt of the Exchange Act reportable information from any other party required
to deliver such information to the Paying Agent), then the Depositor shall (in
the case of clauses (i) through (vi) above) and may (in the case of clauses (v)
through (vii) above) send a written notice of termination to the Paying Agent
(which notice shall specify the reason for such termination) and remove such
Paying Agent and the Depositor shall appoint a successor Paying Agent by written
instrument, one copy of which instrument shall be delivered to the Paying Agent
so removed, one copy to the successor Paying Agent, and one copy to each of the
Trustee, the Master Servicers, the Special Servicers and the Rating Agencies.
(d) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may, without cause, at any time
upon written notice to the Trustee or the Paying Agent, as the case may be, and
to the Depositor remove the Trustee or the Paying Agent, as the case may be, by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee or Paying Agent that has resigned or been removed or
terminated, as contemplated by Section 7.6, to a successor Trustee or Paying
Agent, including those, if any, associated with transfer of the Mortgage Files
and other documents and statements held by the predecessor Trustee or Paying
Agent to the successor Trustee or Paying Agent, as contemplated by Section
7.6(a), shall be paid by: (i) the predecessor Trustee or Paying Agent, if such
predecessor Trustee or Paying Agent has resigned in accordance with Section
7.6(a) or has been removed in accordance with Sections 7.6(b) or 7.6(c), as
applicable; (ii) the Certificateholders that effected the removal, if the
predecessor Trustee or Paying Agent has been removed without cause in accordance
with Section 7.6(d); and (iii) the Trust, if such costs and expenses are not
paid by the predecessor Trustee or Paying Agent or the subject
Certificateholders, as contemplated by the immediately preceding clauses (i) and
(ii), within 90 days after they are incurred (provided that such predecessor
Trustee or predecessor Paying Agent or such subject Certificateholders, as
applicable, shall remain liable to the Trust for such costs and expenses).
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Notwithstanding the foregoing, neither the Trustee nor the Paying
Agent may remain the Trustee or the Paying Agent, as the case may be, under this
Agreement after (x) being merged or consolidated with or into any Person that is
a Prohibited Party, or (y) transferring all or substantially all of its assets
to any Person if such Person is a Prohibited Party, except to the extent (i) the
Trustee or Paying Agent, as the case may be, is the surviving entity of such
merger, consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by any Master Servicer or any Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to a Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and co
trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
Section 7.10 Authenticating Agents
(a) The 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 the Trustee and the Paying Agent
(a) The Trustee, the Certificate Registrar, the Paying Agent (in
each case, whether in its individual capacity or in its capacity as the Trustee,
Certificate Registrar or Paying Agent, as the case may be) and each of its
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents and Controlling Persons shall be entitled to
indemnification from the Trust for any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Mortgage Loans, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of any
Master Servicer, any Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
(in each case, whether in its individual capacity or in its capacity as the
Trustee, Certificate Registrar or Paying Agent, as the case may be) and each of
their respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the
Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the applicable Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, such Master
Servicer, the Sellers, each other and the Holders of Certificates shall
not affect the Trustee's, Certificate Registrar's or Paying Agent's, as
the case may be, rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced
thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may
be, entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, furnished to the Depositor by or on behalf of such Person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, for inclusion in the Preliminary Prospectus
Supplement and Final Prospectus Supplement is set forth, with respect to the
Preliminary Prospectus Supplement, under the headings "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "TRANSACTION PARTIES--The Trustee" (with respect to the
first through sixth paragraphs), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder) and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and Authenticating Agent" (only with respect to the first sentence of the first
paragraph and the second through fourth paragraphs thereunder), and with respect
to the Final Prospectus Supplement (including the Final Prospectus Supplement as
included as Exhibit A to the Private Placement Memorandum), the information
contained therein under the headings "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Trustee" (only with respect to the first sentence
thereunder), "TRANSACTION PARTIES--The Trustee and Custodian" (with respect to
the first through sixth paragraphs), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant
Parties and Dates--Paying Agent" (only with respect to the first sentence
thereunder), and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar
and, Authenticating Agent") (only with respect to the first sentence of the
first paragraph and the second through fourth paragraphs thereunder). The
Trustee, the Certificate Registrar, the Paying Agent, the Custodian or the
Authentication Agent, as the case may be, shall immediately notify the Depositor
and the Sellers if a claim is made by a third party with respect to this Section
7.11(c) entitling such Person, its partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
to indemnification hereunder, whereupon the Depositor shall assume the defense
of any such claim (with counsel reasonably satisfactory to such Person) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Depositor shall not
affect any rights the Trustee, the Certificate Registrar or the Paying Agent, as
the case may be, their respective partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 7.11(c), unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent. The Depositor shall
not be indemnified by the Trust for any expenses incurred by the Depositor
arising from any violation or alleged violation of the 1933 Act or 1934 Act by
the Depositor.
(d) An Other Trustee and an Other Paying Agent and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of such Other Trustee and Other Paying Agent shall be indemnified by the Trust
and held harmless against (i) the Trust's pro rata share of any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to the related Other Pooling and Servicing Agreement
and this Agreement, and relating to the related Non-Trust Serviced Pari Passu
Loan (but excluding any such losses allocable to the related Non-Trust Serviced
Companion Loan), reasonably requiring the use of counsel or the incurring of
expenses other than any losses incurred by reason of such Other Trustee's or
Other Paying Agent's, respectively, willful misfeasance, bad faith or
negligence, as the case may be, in the performance of its duties under the
related Other Pooling and Servicing Agreement and (ii) any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses relating to a Non-Trust Serviced
Pari Passu Loan, but only to the extent that such losses arise out of the
actions of the Master Servicers, the Special Servicers or the Trustee, and only
to the extent that such actions are in violation of the such party's duties
under the provisions of this Agreement and to the extent that such actions are
the result of such party's negligence, bad faith or willful misconduct.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the
Trustee and the Paying Agent may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.
The Trustee or the Paying Agent, as the case may be, shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee or the Paying Agent, as the case may
be, shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the applicable Master Servicer, the Trustee or the Paying
Agent, as the case may be, shall request that the applicable Master Servicer
make such distribution as promptly as practicable or legally permitted. If the
Trustee or the Paying Agent, as the case may be, shall subsequently receive any
such amount, it may withdraw such request.
Section 7.14 Trustee to Act; Appointment of Successor
(a) On and after the time a Master Servicer is terminated pursuant
to this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall
be the successor in all respects to such Master Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on such
Master Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by such Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of such Master
Servicer contained in this Agreement or (ii) any obligation incurred by such
Master Servicer prior to its termination or resignation (including, without
limitation, such Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement), except any
ongoing obligations to the Primary Servicers arising after the termination of
such Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
such Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to such Master
Servicer set forth in this Agreement, including, without limitation, the Master
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee
is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the
applicable Master Servicer hereunder and under the applicable Primary Servicing
Agreement. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate
must meet the standards for the Master Servicer as set forth herein. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of such Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume such Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by such Master Servicer in the applicable Certificate
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by such Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by (i)
the failure of the terminated Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over such Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the terminated Master Servicer
as provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time a Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to such Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by such Special Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
such Special Servicer contained in this Agreement or (ii) any obligation
incurred by such Special Servicer prior to its termination or resignation. In
the Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to such Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to such Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the terminated Special Servicer hereunder in the
assumption of all of the responsibilities, duties or liabilities of the
applicable Special Servicer hereunder. Pending any such appointment, the Trustee
shall act in such capacity as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor,
subject to Section 9.21(d), out of payments on Mortgage Loans as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted to the applicable terminated Special Servicer under this
Agreement. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. A
terminated Special Servicer shall cooperate with the Trustee and any successor
Special Servicer in effecting the termination of such Special Servicer's
responsibilities and rights under this Agreement, including, without limitation,
notifying Mortgagors of Specially Serviced Mortgage Loans of the assignment of
the special servicing function and providing the Trustee and successor Special
Servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor Special Servicer to enable the successor
Special Servicer to assume such Special Servicer's functions hereunder and the
transfer to the Trustee or such successor Special Servicer of all amounts which
shall at the time be or should have been deposited by the terminated Special
Servicer in the applicable Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by such
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of a terminated
Special Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over a Special Servicer. The Trustee shall be reimbursed for all of
its out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the terminated Special Servicer as provided herein; and such expenses paid by
the Trust shall be deemed to be an Additional Trust Expense.
Section 7.15 Notification to Holders
Upon termination of a Master Servicer, the Paying Agent or a Special
Servicer, or appointment of a successor to such Master Servicer, the Paying
Agent or such Special Servicer, the Trustee, with the assistance of the
Certificate Registrar, shall promptly mail notice thereof by first class mail to
the Rating Agencies, the Operating Adviser, the Sellers and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
Section 7.16 Representations and Warranties of the Trustee and
Paying Agent
(a) LaSalle Bank National Association ("LaSalle"), in its capacity
as the Trustee and the Custodian, hereby represents and warrants as of the date
hereof that:
(i) LaSalle 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 LaSalle of this Agreement have
been duly authorized by all necessary action on the part of LaSalle,
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
LaSalle or its properties that would materially and adversely affect
LaSalle's ability to perform its obligations under this Agreement, (ii)
the organizational documents of LaSalle, or (iii) the terms of any
material agreement or instrument to which LaSalle is a party or by which
it is bound; LaSalle 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 LaSalle 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 LaSalle to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by LaSalle
and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of LaSalle,
enforceable against LaSalle 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 LaSalle's knowledge, threatened,
against LaSalle 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 LaSalle to perform under the
terms of this Agreement.
(b) Xxxxx Fargo Bank, National Association ("Xxxxx Fargo Bank"), in
its capacity as the Paying Agent, the Certificate Registrar and the
Authenticating Agent, hereby represents and warrants as of the date hereof that:
(i) Xxxxx Fargo Bank is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by Xxxxx Fargo Bank of this
Agreement have been duly authorized by all necessary action on the part of
Xxxxx Fargo Bank; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on Xxxxx Fargo Bank or its properties that would materially
and adversely affect Xxxxx Fargo Bank's ability to perform its obligations
under this Agreement, (ii) the organizational documents of Xxxxx Fargo
Bank, or (iii) the terms of any material agreement or instrument to which
Xxxxx Fargo Bank is a party or by which it is bound; Xxxxx Fargo Bank is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by Xxxxx Fargo Bank of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for Xxxxx Fargo
Bank to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by Xxxxx
Fargo Bank and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of Xxxxx
Fargo Bank, enforceable against Xxxxx Fargo Bank in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to Xxxxx Fargo Bank's knowledge,
threatened, against Xxxxx Fargo Bank 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 Xxxxx Fargo Bank
to perform under the terms of this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than "A" as rated by S&P and Fitch, if rated by S&P and Fitch,
respectively, and "A" as rated by DBRS, if rated by DBRS or, if not rated by
DBRS, an equivalent rating such as those listed above by two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x), the Trustee or the Paying Agent, as the case may be, may self-insure
for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Appointment of a Fiscal Agent
(a) In order to satisfy the eligibility requirements of Section 7.5
(insofar as such requirements relate to ratings), the Trustee may appoint a
fiscal agent (a "Fiscal Agent"). Any Fiscal Agent shall at all times maintain a
long-term unsecured debt rating of no less than "AA-" from Fitch (or "A+" from
Fitch, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch), a long-term unsecured debt rating of no less than "AA-" from S&P (or
"A+" from S&P, if such Fiscal Agent's short-term unsecured debt rating is at
least "A-1" by S&P) and a long-term unsecured debt rating of no less than
"AA(low)" as rated by DBRS, if rated by DBRS or, if not rated by DBRS, an
equivalent rating such as those listed above by two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x)
(or, in the case of any Rating Agency, such other rating as shall not result in
a downgrade, qualification or withdrawal of the rating by the Rating Agencies of
any Class of Certificates with a rating as evidenced in writing by the Rating
Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes
an Advance pursuant to this Section 7.18(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicers or the
Special Servicers.
(d) The obligations of a Fiscal Agent set forth in this Section 7.18
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.18(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the holders of any Serviced Companion Loan in writing of
the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole
(and, solely as it relates to a Serviced Loan Group, for the benefit of the
holder of the related Serviced Companion Loan), the Master Servicers shall
service and administer the Mortgage Loans (and the Master Servicers shall also
service each related Serviced Companion Loan, if applicable) in accordance with
the Servicing Standard and the terms of this Agreement (subject to the servicing
of a Non-Trust Serviced Pari Passu Loan by the related Other Master Servicer and
the related Other Special Servicer in accordance with the related Other Pooling
and Servicing Agreement). The Capmark Master Servicer shall be the Master
Servicer with respect to the MSMCH Loans, the GECC Loans, the PCFII Loans and
the NatCity Loans, the related Serviced Companion Loans (if applicable) and
other assets in the Trust (other than the RBC Trust Assets, the Nationwide Trust
Assets and the Co-op Trust Assets) and, as such, shall service and administer
such assets as shall be required of the Master Servicer hereunder with respect
to such Trust assets. The Xxxxx Fargo Master Servicer shall be the Master
Servicer with respect to the RBC Loans and the Nationwide Loans, and the related
Serviced Companion Loans (if applicable) and, as such, shall service and
administer the RBC Trust Assets and the Nationwide Trust Assets as shall be
required of the Master Servicer hereunder with respect to the RBC Trust Assets
and the Nationwide Trust Assets. The NCB Master Servicer shall be the Master
Servicer with respect to the NCB, FSB Loans and, as such, shall service and
administer the Co-op Trust Assets as shall be required of such Master Servicer
hereunder with respect to the Co-op Trust Assets. With respect to a Non-Trust
Serviced Pari Passu Loan, the applicable Master Servicer shall enforce the
rights of the Trustee, as holder of such Non-Trust Serviced Pari Passu Loan,
under the related Co-Lender Agreement and the related Other Pooling and
Servicing Agreement; provided, however, that any expenses incurred by the
applicable Master Servicer in connection with such enforcement shall be a
Servicing Advance. Certain of the provisions of this Article VIII make explicit
reference to their applicability to Mortgage Loans and Serviced Companion Loans;
notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to the related Serviced Companion 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). Certain of the
provisions of this Article VIII make explicit reference to their
non-applicability to a Non-Trust Serviced Pari Passu Loan; notwithstanding such
explicit references, references to "Mortgage Loans" and "Mortgaged Property"
contained in this Article VIII, unless otherwise specified to include a
Non-Trust Serviced Pari Passu Loan, the obligations of the Master Servicers or
Special Servicers pursuant to this Agreement, shall be construed to exclude a
Non-Trust Serviced Pari Passu Loan and any related real property (but any other
terms that are defined in Article I and used in this Article VIII shall be
construed according to such definitions without regard to this sentence).
Notwithstanding anything contained in Article IV or in this Article
VIII to the contrary, the Master Servicers will not be required to make any
Servicing Advances with respect to any Non-Trust Serviced Pari Passu Loan
(except as explicitly provided for in the fourth sentence of the immediately
preceding paragraph).
In connection with such servicing and administration, each Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the applicable Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
applicable Master Servicer, including with respect to Master Servicing Fees or
the right to be reimbursed for Advances.
(b) The applicable Master Servicer, in the case of an event
specified in clause (x) of this subclause (b), and the applicable Special
Servicer, in the case of an event specified in clause (y) of this subclause (b),
shall each send a written notice to the other and to the Trustee and the Paying
Agent, the Operating Adviser, the respective Seller and, in the case of a
Serviced Loan Group, the holder of the related Serviced Companion 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 any of the applicable Master Servicer, the applicable Special
Servicer or the applicable Primary Servicer has actual knowledge of any event
giving rise to a claim under an Environmental Insurance Policy, such Person
shall notify the related Master Servicer, the related Special Servicer and the
related Primary Servicer, as applicable, to such effect and such Master Servicer
shall take reasonable actions as are in accordance with the Servicing Standard
and the terms and conditions of such Environmental Insurance Policy to make a
claim thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the applicable Master Servicer or the
applicable Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan that is the subject of an Environmental Insurance Policy, the
applicable Master Servicer shall give prompt written notice of such extension to
the insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
(e) The parties hereto acknowledge that each Serviced Companion Loan
is subject to the terms and conditions of the related Co-Lender Agreement. With
respect to each Senior Mortgage Loan, the Trustee, the applicable Master
Servicer and the applicable Special Servicer recognize the respective rights and
obligations of the Trust and the holder of each Serviced Companion Loans under
the related Co-Lender Agreement, including, with respect to the allocation of
collections on or in respect of each Senior Mortgage Loan and the Serviced
Companion Loan in accordance with the related Co-Lender Agreement. The
applicable Master Servicer shall comply with the applicable provisions of each
Co-Lender Agreement, and, if any loan in a Serviced Loan Group becomes a
Specially Serviced Mortgage Loan, the applicable Special Servicer shall comply
with the applicable provisions of the related Co-Lender Agreement.
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers
Each Master Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless a Master Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the applicable Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long term rating of a Master Servicer (or its
corporate parent) is not in any event less than "A" as rated by S&P, "A" as
rated by Fitch, and "A" as rated by DBRS (or, if not rated by DBRS, (a) an
equivalent rating (such as those listed above for Fitch and S&P) by two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x) or (b) at least A:IX by A.M. Best's Key Rating Guide),
respectively, such Master Servicer may self insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicers' General Power and Duties
(a) Each Master Servicer shall service and administer the Mortgage
Loans (other than the Non-Trust Serviced Pari Passu Loans) it is required to
service hereunder and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and 9.39
and Article XII hereof and as otherwise provided herein and by the Code, have
full power and authority to do any and all things which it may deem necessary or
desirable in connection with such servicing and administration in accordance
with the Servicing Standard. To the extent consistent with the foregoing and
subject to any express limitations and provisions set forth in this Agreement,
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 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 Sections 8.7 and 8.18, 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 Sections 8.7 and 8.18, 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 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 under the terms of the
Mortgage, including all rights of consent or approval thereunder, (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 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) cause to be held on behalf of the
Trustee, 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." In addition, each Master
Servicer, consistent with the Servicing Standard, may waive (i) any default
interest and Late Fees with respect to its Mortgage Loans that are not Specially
Serviced Mortgage Loans and (ii) default interest on a Balloon Payment (but only
with the consent of the applicable Special Servicer); provided that, to the
extent the applicable Master Servicer waives any default interest and Late Fees,
any outstanding Advance Interest with respect to the related Mortgage Loan (or
Serviced Companion Loan, as applicable) that would otherwise have been paid out
of such default interest and Late Fees shall be paid out of the additional
servicing compensation payable to such Master Servicer with respect to that
Mortgage Loan (or Serviced Companion Loan, as applicable); and provided,
further, that if no additional servicing compensation is available to offset the
outstanding Advance Interest with respect to the Mortgage Loan (or Serviced
Companion Loan) that would otherwise be offset by the default interest and Late
Fees, then the applicable Master Servicer shall not waive such default interest
and Late Fees unless it is the first such waiver with respect to the subject
Mortgage Loan (or Serviced Companion Loan, as applicable).
Notwithstanding the above, the Master Servicers shall have no power
to (i) waive any Prepayment Premiums or (ii) consent to any modification of a
Money Term. In addition, subject to the Servicing Standard, the Master Servicers
shall not accept any prepayment of principal with respect to any Mortgage Loan
on any date other than the related Due Date unless (i) such payment is
accompanied by a payment of the interest due with respect to such Mortgage Loan
up to the next succeeding Due Date, (ii) such prepayment does not result in the
Trust incurring a Prepayment Interest Shortfall or (iii) such prepayment is
required to be permitted under the related Mortgage Loan documents on a date
other than the related Due Date. Nothing contained in this Agreement shall limit
the ability of the Master Servicers to lend money to (to the extent not secured,
in whole or in part, by any Mortgaged Property, except for a Co-op Mortgage Loan
as to which the NCB, FSB Subordinate Debt Conditions have been satisfied in
which case a subordinate loan may be secured by a mortgage lien on the related
Mortgaged Property), accept deposits from and otherwise generally engage in any
kind of business or dealings with any Mortgagor as though the Master Servicer
were not a party to this Agreement or to the transactions contemplated hereby;
provided, however, that this sentence shall not modify the Servicing Standard.
(b) No Master Servicer shall be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. Such Master Servicer
shall be required to make all calculations and prepare all reports required
hereunder with respect to such Specially Serviced Mortgage Loans (other than
calculations and reports expressly required to be made by the applicable Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans (in each case,
subject to such Advance not being a Nonrecoverable Advance), all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. Each Master
Servicer shall give notice within two Business Days to the applicable Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by such Special Servicer
and such Master Servicer. Such Special Servicer shall instruct within two
Business Days after receiving such notice the applicable Master Servicer on how
to apply such funds. The applicable Master Servicer within one Business Day
after receiving such instructions shall apply such funds in accordance with the
applicable Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan
becomes a Rehabilitated Mortgage Loan. No Master Servicer shall be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney attached hereto as Exhibit X-0X, Xxxxxxx X-0X
and Exhibit S-1C. The Master Servicers, shall promptly notify the Trustee of the
recording of any document on behalf of the Trustee under such Power-of-Attorney.
From time to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicers or the Special
Servicers, the Trustee shall execute and return to any Master Servicer, any
Special Servicer or any Primary Servicer any additional powers of attorney and
other documents necessary or appropriate to enable such Master Servicer and such
Special Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. Each Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by a Master Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicers nor the
Special Servicers shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of the Mortgage
Loans solely under the Trustee's name without indicating such Master Servicer's
or Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties), or
(iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. The limitations of the preceding clause shall not be construed to
limit any duty or obligation imposed on the Trustee under any other provision of
this Agreement.
(d) Each Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties and other than
the Non-Trust Serviced Pari Passu Loans).
(e) Each Master Servicer (or any Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
Mortgage Loan (other than a Non-Trust Serviced Pari Passu Loan) constituting
Escrow Amounts separate and apart from any of its own funds and general assets
and shall establish and maintain one or more segregated custodial accounts
(each, an "Escrow Account") into which all Escrow Amounts shall be deposited
within one Business Day after receipt. Each Escrow Account shall be an Eligible
Account except with respect to Mortgage Loans identified on Schedule VII for
which Escrow Accounts shall be transferred to Eligible Accounts at the earliest
date permitted under the related Mortgage Loan documents. The applicable Master
Servicer shall also deposit into each applicable Escrow Account any amounts
representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the applicable Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any
Advance (or the Trust for any Unliquidated Advance) relating to Escrow
Amounts, but only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest
or investment income earned on funds deposited in the applicable Escrow
Account if such income is required to be paid to the related Mortgagor
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the applicable Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding two sentences, (i) each Master
Servicer may direct any depository institution or trust company in which the
applicable Escrow Accounts are maintained to invest the funds held therein in
one or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a schedule
which will permit such Master Servicer to meet the payment obligations for which
the applicable Escrow Account was established; (ii) each Master Servicer shall
be entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) each Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master Servicers shall not direct the investment
of funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicers shall not be required to
invest amounts on deposit in applicable Escrow Accounts in Eligible Investments
or Eligible Accounts to the extent that the Master Servicers are required by
either law or under the terms of any related Mortgage Loan to deposit or invest
(or the Mortgagor is entitled to direct the deposit or investment of) such
amounts in another type of investments or accounts. In the event a Master
Servicer is not entitled to direct the investment of such funds, (1) such Master
Servicer shall direct the depository institution or trust company in which such
Escrow Accounts are maintained to invest the funds held therein in accordance
with the Mortgagor's written investment instructions, if the terms of the
related Mortgage Loan or applicable law require such Master Servicer to invest
such funds in accordance with the Mortgagor's directions; and (2) in the absence
of appropriate written instructions from the Mortgagor, the Master Servicers
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit the Master Servicers to meet the payment obligations for which
the applicable Escrow Account was established, and (ii) the Master Servicers
shall have no liability for any loss in investments of such funds that are
invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and 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
applicable Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by such Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The applicable Master Servicer
shall apply the funds deposited in such accounts in accordance with terms of the
related Mortgage Loan documents, any Lock-Box Agreement and in accordance with
the Servicing Standard.
(h) The applicable Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents (provided that notwithstanding such terms,
the applicable Master Servicer or Primary Servicer, as applicable, may accept
any defeasance collateral satisfying clause (i) in the second succeeding
sentence; provided, that it receives a Nondisqualification Opinion with respect
thereto), and shall be entitled to any fees paid relating thereto (other than
the consent fee payable to MSMCH in connection with the MSMCH Defeasance Rights
and Obligations). The applicable Master Servicer shall not permit defeasance (or
partial defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on
or before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and such Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
applicable Master Servicer, in connection with the defeasance of a Mortgage Loan
shall require (to the extent it is not inconsistent with the Servicing Standard)
that: (i) the defeasance collateral consists of "government securities" as
defined in the 1940 Act (inclusive of agency securities), subject to Rating
Agency approval, (ii) such Master Servicer has received evidence satisfactory to
it, that the defeasance will not result in an Adverse REMIC Event, (iii) either
(A) the related Mortgagor designates a Single-Purpose Entity (if the Mortgagor
no longer complies) to own the Defeasance Collateral (subject to customary
qualifications) or (B) such Master Servicer has established a Single-Purpose
Entity to hold all Defeasance Collateral relating to the Defeasance Loans (in
its corporate capacity and not as agent of or on behalf of the Trust or the
Trustee), (iv) such Master Servicer has requested and received from the
Mortgagor (A) an opinion of counsel that the Trustee will have a perfected,
first priority security interest in such Defeasance Collateral and (B) written
confirmation from a firm of independent accountants stating that payments made
on such Defeasance Collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan (or the defeased portion thereof in
connection with a partial defeasance) in full on or before its Maturity Date
(or, in the case of an ARD Loan, on or before its Anticipated Repayment Date)
and to timely pay each subsequent Scheduled Payment, (v) (A) such Master
Servicer shall receive a Rating Agency Confirmation if the Mortgage Loan
(together with any other Mortgage Loan with which it is cross-collateralized)
has a Principal Balance greater than the lesser of $35,000,000 and 5% of the
Aggregate Certificate Balance (or such higher threshold as shall be published by
S&P), unless such Rating Agency has waived in writing such Rating Agency
Confirmation requirement or (B) if the Mortgage Loan is less than or equal to
both of the amounts set forth in clause (A), either a Notice and Certification
in the form attached hereto as Exhibit Z (or such less restrictive form as shall
be adopted by S&P) or a Rating Agency Confirmation is received from S&P and (vi)
a Rating Agency Confirmation is received if the Mortgage Loan is one of the ten
largest Mortgage Loans, by Principal Balance. Any customary and reasonable
out-of-pocket expense incurred by the applicable Master Servicer pursuant to
this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents.
The parties hereto acknowledge that, if a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, then the sole obligation of the related Seller shall be to
pay an amount equal to such insufficiency or expense to the extent the related
Mortgagor is not required to pay such amount. Promptly upon receipt of notice of
such insufficiency or unpaid expenses or costs, the applicable Master Servicer
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The related Seller shall have no obligation to
pay for any of the foregoing costs if the applicable Mortgagor has an obligation
to pay for such costs.
In the case of a Specially Serviced Mortgage Loan, the applicable
Master Servicer shall process any defeasance of such Specially Serviced Mortgage
Loan in accordance with the original terms of the respective Mortgage Loan
documents following a request by the applicable Special Servicer that such
Master Servicer do so, which request shall be accompanied by a waiver of any
condition of defeasance that an "event of default" under such Specially Serviced
Mortgage Loan not have occurred or be continuing, and such Master Servicer shall
be entitled to 100% of any fees paid relating to such defeasance (other than the
consent fee payable in connection with the MSMCH Defeasance Rights and
Obligations). If such "event of default" is on account of an uncured payment
default, the applicable Special Servicer will process the defeasance of such
Specially Serviced Mortgage Loan, and such Special Servicer shall be entitled to
100% of any fees paid relating to such defeasance (other than the consent fee
payable in connection with the MSMCH Defeasance Rights and Obligations).
Notwithstanding the foregoing, with respect to the Mortgage Loans
originated or acquired by MSMCH and subject to defeasance, MSMCH has retained
the right to designate and establish the successor borrower and to purchase or
cause the purchase on behalf of the related borrower of the related defeasance
collateral ("MSMCH Defeasance Rights and Obligations"). In the event the
applicable Master Servicer receives notice of a defeasance request with respect
to a Mortgage Loan originated or acquired by MSMCH and subject to defeasance,
the applicable Master Servicer shall provide upon receipt of such notice,
written notice of such defeasance request to MSMCH or its assignee. Until such
time as MSMCH provides written notice to the contrary, notice of a defeasance of
a Mortgage Loan with MSMCH Defeasance Rights and Obligations shall be delivered
to MSMCH pursuant to the notice provisions of this Agreement.
(i) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is thirty (30) days after
receipt of the related Servicer Mortgage File by such Master Servicer (or
Primary Servicer, if applicable), the Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement, and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). Such Master
Servicer shall promptly notify the ground lessor if the Seller has failed to do
so by the thirtieth day after the Closing Date.
(j) Pursuant to the related Co-Lender Agreement with respect to the
related Non-Trust Serviced Loan Group, the owner of a Non-Trust Serviced Pari
Passu Loan has agreed that such owner's rights in, to and under such Non-Trust
Serviced Pari Passu Loan are subject to the servicing and all other rights of
the related Other Master Servicer and the related Other Special Servicer, and
the related Other Master Servicer and the related Other Special Servicer are
authorized and obligated to service and administer such Non-Trust Serviced Pari
Passu Loan pursuant to the related Other Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the applicable Master Servicer's obligations and responsibilities
hereunder and the applicable Master Servicer's authority with respect to a
Non-Trust Serviced Pari Passu Loan are limited by and subject to the terms of
the related Co-Lender Agreement and the rights of the related Other Master
Servicer and the related Other Special Servicer with respect thereto under the
related Other Pooling and Servicing Agreement. The applicable Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to enforce
the rights of the Trustee (as holder of a Non-Trust Serviced Pari Passu Loan)
under the related Co-Lender Agreement and the related Other Pooling and
Servicing Agreement. The applicable Master Servicer shall take such actions as
it shall deem reasonably necessary to facilitate the servicing of a Non-Trust
Serviced Pari Passu Loan by the related Other Master Servicer and the related
Other 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 related Other Master Servicer or
the related Other Special Servicer under the related Other Pooling and Servicing
Agreement.
(k) Pursuant to the Co-Lender Agreements, with respect to the
Serviced Loan Group, the holders of the Serviced Companion Loans have agreed
that the applicable Master Servicer and the applicable Special Servicer are
authorized and obligated to service and administer the Serviced Companion Loans
pursuant to this Agreement, but subject, nevertheless, to the terms and
provisions of the Co-Lender Agreement. With respect to each Serviced Loan Group,
the applicable Master Servicer shall be entitled, during any period when such
Serviced Loan Group does not constitute a Specially Serviced Mortgage Loan, to
exercise the rights and powers granted under the applicable Co-Lender Agreement
to the "Note A Holder" (or a similar reference to the holder of the applicable
Mortgage Loan) and/or the "Master Servicer" or the "Servicer" (as the context
requires) referred to therein, subject to the limitations of the applicable
Co-Lender Agreement. For the avoidance of doubt, the parties acknowledge that
neither the applicable Master Servicer nor the applicable Special Servicer shall
be entitled or required to exercise the rights and powers granted to the "Note B
Holder" or the "Note C Holder" (or a similar reference to the holder of the
applicable Serviced Companion Loan) as defined under the related Co-Lender
Agreement. Nothing in this Section 8.3(k) shall be construed to add to or expand
the responsibilities and duties of any Master Servicer or any Special Servicer
as expressly set forth in this Agreement and the Co-Lender Agreements with
respect to the Serviced Companion Loan. To the extent of any conflicts between
the provisions of this Agreement with respect to the servicing and
administration of the Serviced Companion Loans and the provisions of the related
Co-Lender Agreement, the provisions of the Co-Lender Agreements (which may not
be amended without the consent of the related Master Servicer or the related
Special Servicer, as applicable, acting on behalf of the Trust as holder of the
related Senior Mortgage Loan in accordance with this Agreement) shall control;
provided that in no event shall the applicable Master Servicer of the applicable
Special Servicer take any action or omit to take any action in accordance with
the terms of any Co-Lender Agreement that would cause such Master Servicer or
such Special Servicer, as the case may be, to violate the Servicing Standard or
REMIC Provisions.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that each of the Capmark
Master Servicer and the Xxxxx Fargo Master Servicer has delegated certain of its
obligations and assigned certain of its rights under this Agreement to each of
the related Primary Servicers pursuant to the respective Primary Servicing
Agreements and (B) agree: (1) in addition to those obligations specifically
delegated by the related Master Servicer to the Primary Servicers under the
applicable Primary Servicing Agreement, each Primary Servicer shall also perform
the related Master Servicer's obligations set forth in Section 2.1(d) of this
Agreement as such Section relates to the Mortgage Loans serviced by it; (2) in
addition to those rights specifically granted by the related Master Servicer to
the Primary Servicers under the applicable Primary Servicing Agreement, those
rights set forth in Section 8.24 hereof accruing to the benefit of the related
Master Servicer shall also accrue to the benefit of the Primary Servicers (or
Sub-Servicers engaged by the applicable Master Servicer or Primary Servicer);
(3) any indemnification or release from liability set forth in this Agreement
accruing to the benefit of the related Master Servicer shall also, to the extent
applicable, benefit the Primary Servicers (or Sub-Servicers engaged by the
applicable Master Servicer or 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 related Master Servicer in respect of
Mortgage Loans for which a Primary Servicer has been engaged, such party shall
deliver to each of the applicable Primary Servicers 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 related Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement,
the Sub-Servicing Agreement or any other provisions of this Agreement, the
Master Servicers shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicers, the Certificateholders and the holder of each
Serviced Companion Loan for servicing and administering of the Mortgage Loans
and each Serviced Companion Loan in accordance with the provisions of this
Agreement to the same extent as if the applicable Master Servicer was alone
servicing and administering the Mortgage Loans and each Serviced Companion Loan;
provided, however, the foregoing shall not in any way limit or impair the
indemnification provisions benefiting the Master Servicers in Section 8.25; and
further provided, however, for the avoidance of doubt, such "servicing and
administration" shall not be construed to include reporting under or for
purposes of compliance with Regulation AB. Each Master Servicer or applicable
Primary Servicer shall supervise, administer, monitor, enforce and oversee the
servicing of the applicable Mortgage Loans (or Serviced Companion Loan) by any
Sub-Servicer appointed by it. Other than with respect to the agreements with the
Primary Servicers or the Sub-Servicers under agreements that are in effect as of
the Closing Date, the terms of any arrangement or agreement between the Master
Servicer or applicable Primary Servicer, on the one hand, and a Sub-Servicer, on
the other, shall provide that such sub-servicing agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such applicable Master Servicer or the applicable
Primary Servicer is terminated in accordance with this Agreement or the
applicable Primary Servicing Agreement. In addition, none of the Special
Servicers, the Trustee, the Paying Agent, the Certificateholders or the holder
of a Serviced Companion Loan shall have any direct obligation or liability
(including, without limitation, indemnification obligations) with respect to any
Sub-Servicer. The applicable Master Servicer or applicable Primary Servicer
shall pay the costs of enforcement against any of its Sub-Servicers at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent that such recovery exceeds
all amounts due in respect of the related Mortgage Loans or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any Primary
Servicing Agreement or any sub-servicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between a Master Servicer,
a Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the applicable Master Servicer, or applicable Primary
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the
applicable Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans and Serviced Companion Loans in
accordance with (and subject to the limitations contained within) the provisions
of this Agreement or the applicable Primary Servicing Agreement without
diminution of such obligation or liability by virtue of indemnification from a
Sub-Servicer and to the same extent and under the same terms and conditions as
if the applicable Master Servicer or applicable Primary Servicer alone were
servicing and administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicers or any Primary Servicer may appoint one or more sub-servicers (each, a
"Sub-Servicer") to perform all or any portion of its duties hereunder for the
benefit of the Trustee and the Certificateholders, provided, however, that any
decision or recommendation involving the exercise of a Primary Servicer's
discretion as a "lender" under any loan document with respect to a Mortgage Loan
shall be exercised only by the Primary Servicer and may not be delegated to a
Sub-Servicer; provided, further, however, that no Master Servicer, Special
Servicer or Primary Servicer shall enter into a sub-servicing agreement with any
party that is a Prohibited Party.
The related Master Servicer shall enter into a Primary Servicing
Agreement with each Primary Servicer and shall not terminate such agreement
except in accordance with the terms thereof. To the extent consistent with the
rights of a Primary Servicer under this Agreement and the related Primary
Servicing Agreement, but not in limitation of any other rights granted to a
Primary Servicer in this Agreement and/or in the Primary Servicing Agreement,
such Primary Servicer shall have all of the rights and obligations of a
Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the applicable Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated
in accordance with its provisions, (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the terminated Master Servicer) shall be deemed to automatically
assume and agree to each of the then current Primary Servicing Agreements or
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer, and (iii) this Agreement may not be modified in any manner
which would increase the obligations or limit the rights of any Primary Servicer
or any Sub-Servicer hereunder and/or under the applicable Primary Servicing
Agreement or the Sub-Servicing Agreement, without the prior written consent of
such Primary Servicer or the Sub-Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of the related Master Servicer is
delegated to a Primary Servicer under a Primary Servicing Agreement, and such
task, right or obligation involves or requires the consent of the related
Special Servicer, then such Special Servicer shall accept the performance of
such task, right or obligation by such Primary Servicer in accordance with the
terms of this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by such Special Servicer) as if the
related Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that each Special Servicer, in such capacity, is
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor is bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer.
Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer (including the Primary Servicing Agreements and
the Sub-Servicing Agreements) shall provide that (i) the failure of the related
Sub-Servicer to comply with any of the requirements of Article XIII of this
Agreement and (ii) for so long as the applicable Master Servicer is required to
provide Exchange Act reporting items under the terms of this Agreement, the
failure of the related Sub-Servicer to comply with any requirements to deliver
any items required by Items 1122 and 1123 of Regulation AB (while such reporting
is required under Regulation AB) under any other pooling and servicing agreement
relating to any transaction similar to the Subject Securitization Transaction
shall constitute an event of default by such Sub-Servicer upon the occurrence of
which either the applicable Master Servicer or the applicable Special Servicer
or the Depositor shall immediately terminate the related Sub-Servicer under the
related sub-servicing agreement and that such termination shall be deemed for
cause.
Section 8.5 Servicers May Own Certificates
Any Master Servicer and any Primary Servicer and any agent of the
Master Servicers or Primary Servicers in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not such Master Servicer, such Primary Servicer or such agent.
Any such interest of any Master Servicer or any Primary Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of such Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by such
Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and
Taxes
Subject to the limitations set forth below, each Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) to the extent required by the related Mortgage (A) a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding Principal
Balance of such Mortgage Loan (and, with respect to a Serviced Loan Group, the
related Serviced Companion Loan) but, in any event, unless otherwise specified
in the applicable Mortgage or Mortgage Note, in an amount sufficient to avoid
the application of any co insurance clause, (B) any terrorism insurance coverage
for a Mortgage Loan, which the related Mortgagor is required to maintain under
the related Mortgage, to the extent that such insurance is available at a
commercially reasonable rate and (C) any other insurance coverage for a Mortgage
Loan which the related Mortgagor is required to maintain under the related
Mortgage; provided the applicable Master Servicer shall not be required to
maintain earthquake insurance on any Mortgaged Property required by the related
Mortgage unless such insurance was required at origination and is available at a
commercially reasonable rate; provided, however, that the applicable Special
Servicer shall have the right, but not the duty, to obtain, at the Trust's
expense, earthquake insurance on any Mortgaged Property securing a Specially
Serviced Mortgage Loan or an REO Property so long as such insurance is available
at a commercially reasonable rate; provided, further, that a determination by a
Master Servicer that terrorism insurance is not available at a commercially
reasonable rate shall be subject to the approval of the applicable Special
Servicer as set forth below; provided, further, that in determining what
insurance the Mortgagor is required to maintain, the applicable Master Servicer
shall take into account the insurance maintained on the closing date of the
Mortgage Loan. If the related Mortgagor does not maintain the insurance set
forth in clauses (A), (B) and (C) above, then the applicable Master Servicer
shall cause to be maintained such insurance with a Qualified Insurer and the
payment of the cost of such insurance shall be a Servicing Advance; provided,
that a determination by a Master Servicer (with respect to non-Specially
Serviced Mortgage Loans) that terrorism insurance is not available at a
commercially reasonable rate will be subject to the approval of the applicable
Special Servicer as set forth below. Concurrently with its making such
determination, such Master Servicer shall forward to the applicable Special
Servicer all information used to make such determination. Upon a Master
Servicer's determination that terrorism insurance is not available at a
commercially reasonable rate, such Master Servicer shall notify the applicable
Special Servicer. Such Special Servicer shall have seven calendar days after
such notice to approve or disapprove such determination. The failure of the
applicable Special Servicer to provide notice of such approval or disapproval in
such time period shall be deemed approval. If such Special Servicer provides
such notice of disapproval within such time period, such Master Servicer shall
obtain such insurance coverage.
To the extent required by the related Mortgage Loan documents, each
Standard Hazard Insurance Policy maintained with respect to any Mortgaged
Property that is not an REO Property shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. If, on the date of
origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the applicable Master
Servicer (with respect to any Mortgaged Property that is not an REO Property)
shall cause flood insurance to be maintained. To the extent required by the
related Mortgage Loan documents, such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan or (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program, if the area in
which the improvements on the Mortgaged Property are located is participating in
such program. Any amounts collected by the applicable Master Servicer under any
such policies (other than amounts to be applied to the restoration or repair of
the related Mortgaged Property or property thus acquired or amounts released to
the Mortgagor in accordance with the terms of the applicable Mortgage Loan)
shall be deposited in the applicable Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by a
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the 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
such Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, a Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, a Master Servicer
shall not be required in any event to maintain or obtain insurance coverage to
the extent the Trustee as mortgagee does not have an insurable interest or
beyond what is reasonably available at a commercially reasonable rate and
consistent with the Servicing Standard. Each Master Servicer shall notify the
Trustee in the event it makes such determination. Notwithstanding the foregoing,
such determination shall be subject to the approval of the applicable Special
Servicer with respect to terrorism insurance, as set forth in the first
paragraph of this Section 8.6 and, with respect to the Serviced Loan Groups, the
related Co-Lender Agreement. In addition, each Master Servicer shall be entitled
to rely at its own expense on insurance consultants in connection with any such
determination. In no event shall the Master Servicer be required to obtain any
insurance coverage that would require a Servicing Advance that constitutes a
Nonrecoverable Advance.
Each Master Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 8.6 either (i) if such Master
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans (and the Serviced Companion Loans, as applicable), it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer or (ii) if such Master Servicer,
provided that its or its parent's long-term rating is not less than "A" by S&P,
"A" by Fitch and "A" by DBRS (or, if not rated by DBRS, (a) an equivalent rating
(such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations (which may include S&P, Fitch and/or
Xxxxx'x) or (b) at least A:IX by A.M. Best's Key Rating Guide), self-insures for
its obligations as set forth in the first paragraph of this Section 8.6. In the
event that a Master Servicer shall cause any Mortgage Loan to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgage Loan is then
covered thereby), if not borne by the related Mortgagor, shall be paid by such
Master Servicer as a Servicing Advance. If such policy contains a deductible
clause, the applicable Master Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 8.6 and there shall have been a loss that would have been covered by
such policy, deposit in the applicable Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans (and each Serviced Companion Loan, as applicable), the applicable
Master Servicer agrees to present, on its behalf and on behalf of the Trustee
(and the holder of each Serviced Companion Loan, as applicable), claims under
any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the applicable Master Servicer
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the applicable Master
Servicer (other than with respect to REO Mortgage Loans) shall, except in the
case of Mortgage Loans under which Escrow Amounts are not held by the applicable
Master Servicer (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the applicable Master Servicer in accordance with the
Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item prior to
such penalty or termination date (or, with respect to real estate taxes, prior
to the earlier of the imposition of late tax payment penalty charges or the
notice of intent to create a tax lien on the Mortgaged Property), subject to
Section 4.4 hereof. No costs incurred by the Master Servicers or the Trustee, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding principal
balances of such Mortgage Loans.
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause
(a) In the event a Master Servicer (or, with respect to Mortgage
Loans serviced pursuant to a Primary Servicing Agreement, a Primary Servicer)
receives a request from a Mortgagor pursuant to the provisions of any Mortgage
Loan (other than a Specially 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 by, another Person, the Master Servicer (or, if applicable, the related
Primary Servicer, who shall send a copy of such request to the applicable Master
Servicer within 5 Business Days of receipt thereof by such Primary Servicer)
shall obtain relevant information for purposes of evaluating such request and
the applicable Special Servicer shall not have an obligation to review or
consent to such request. 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. With respect to each Mortgage
Loan that does not "expressly permit" an assignment or assumption, if the
applicable Master Servicer (or, if such Mortgage Loan is serviced by a Primary
Servicer, the Primary Servicer) recommends to approve such assignment, such
Master Servicer shall provide to the applicable Special Servicer (which shall
forward the same to the Operating Adviser) (or, with respect to a recommendation
by the Primary Servicer, to the applicable Master Servicer and the applicable
Special Servicer (which shall forward to and coordinate with the Operating
Adviser), simultaneously) 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
applicable Special Servicer, in the form attached hereto as Exhibit U) and all
other information related to such assignment and assumption in its possession
reasonably requested by the applicable Special Servicer and (A) the applicable
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 and this Agreement, and such Special Servicer shall not
unreasonably withhold such consent and any such decision of such Special
Servicer shall be in accordance with the Servicing Standard, (B) failure of the
applicable Special Servicer to notify the applicable Master Servicer in writing
within five Business Days following such Master Servicer's or the applicable
Primary Servicer's delivery of the recommendation described above and the
Assignment and Assumption Submission to such Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a decision to grant or withhold such consent in
accordance with the recommendation of such Master Servicer; provided, that, if
the applicable Special Servicer reasonably requests additional information from
the Master Servicer or Primary Servicer, as applicable, on which to base its
decision, the foregoing five Business Day period in which such Special Servicer
has to consent to the Assignment and Assumption Submission shall cease to run on
the Business Day on which such Special Servicer makes such request and shall
continue to run (without starting over) on the Business Day on which such
Special Servicer receives such additional information, and (C) the applicable
Master Servicer or Primary Servicer shall not permit any such assignment or
assumption unless it has received the written consent of the applicable Special
Servicer (which shall be deemed to include the consent of the applicable
Operating Advisor) or such consent has been deemed to have been granted as
described in the preceding clause (B). Each Special Servicer hereby acknowledges
the delegation by the applicable Master Servicer of its rights and duties
hereunder pursuant to the provisions of each Primary Servicing Agreement. If a
Special Servicer withholds consent pursuant to the provisions of this Agreement,
it shall provide the applicable Master Servicer or any applicable Primary
Servicer with a written statement and a verbal explanation as to its reasoning
and analysis within the time frame specified in (B) of the preceding sentence.
Upon consent or deemed consent by the applicable Special Servicer to such
proposed assignment and assumption, the applicable Master Servicer or Primary
Servicer, as applicable, shall process such request of the related Mortgagor 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 and substitute as obligor thereunder the Person
to whom the related Mortgaged Property has been or is proposed to be conveyed;
provided, however, that such 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. In the event that the applicable Master
Servicer shall require a Nondisqualification Opinion in order to process a
request for a substitution, such Master Servicer shall use its reasonable
efforts in accordance with the Servicing Standard to collect the related costs,
expenses and fees from the Mortgagor to the extent the related Mortgage Loan
documents require the related Mortgagor to pay such amounts. To the extent
permitted by applicable law, a Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor is in conformity to the terms of the related Mortgage Loan. In
making its recommendation, each Master Servicer shall evaluate such conformity
in accordance with the Servicing Standard. A Master Servicer shall not condition
approval of any request for assumption of a Mortgage Loan on an increase in the
interest rate of such Mortgage Loan. The applicable Master Servicer shall notify
the Trustee, the Paying Agent (it being understood that such notice to the
Paying Agent is deemed sent by receipt of the related monthly CMSA Reports, with
no separate notice required for the Paying Agent) and the applicable Special
Servicer (which shall, in turn, notify the Operating Adviser) of any assignment
and assumption or substitution agreement executed pursuant to this Section
8.7(a). The applicable Master Servicer shall be entitled to (as additional
servicing compensation) 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 (except that the Master Servicer shall be entitled to
100% of such fee in connection with (a) any assignment and assumption or
substitution with respect to which the consent of the applicable Special
Servicer was not required (and 100% of assumption application fees) or (b) any
assignment and assumption or substitution that is "expressly permitted" pursuant
to the terms of the related Mortgage Loan), as executed pursuant to this Section
8.7(a) and the applicable Special Servicer shall be entitled to (as additional
special servicing compensation) the other 50% of such assumption 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 not "expressly permitted" pursuant to the terms of the
related Mortgage Loan); provided that any such fees payable to a Master Servicer
pursuant to this paragraph shall be divided between the Master Servicer and any
related Primary Servicer as set forth in the applicable Primary Servicing
Agreement.
The applicable Special Servicer acknowledges that the Capmark Master
Servicer has delegated certain tasks, rights and obligations to the Primary
Servicer of the PCFII Loans and with respect to Post-Closing Requests (as
defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4
of this Agreement. Such Primary Servicing Agreement classifies certain
Post-Closing Requests as Category 1 Requests (as defined in the Primary
Servicing Agreement), and grant the Primary Servicer certain authority to
evaluate and process such requests in accordance with this Agreement, the
Primary Servicing Agreement and the 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 for the PCFII Loans provide for the Capmark Master
Servicer's (or, with respect to the PCFII Loans, the Primary Servicer's)
determination of materiality of such condition, term or provision requiring
approval or consent and the referral of such condition, term or provision to the
applicable Special Servicer for consent in accordance with the terms of the
Primary Servicing Agreements upon a determination of materiality. The applicable
Special Servicer hereby acknowledges such provisions. Nothing in this Agreement,
however, shall grant the Primary Servicer for the PCFII Loans greater authority,
discretion or delegated rights over Post-Closing Requests than are set forth in
the Primary Servicing Agreement.
In addition, the applicable Special Servicer acknowledges that the
Capmark Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicer of the PCFII Loans 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 such evaluation or processing shall be conducted in accordance
with the Primary Servicing Agreement and nothing in this Agreement shall give
the Primary Servicer greater authority, discretion or delegated rights over
Post-Closing Requests than set forth in the Primary Servicing Agreement, 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 Capmark Master 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 related Primary
Servicing Agreement that require the approval of a Special Servicer and subject
to the terms and provisions of the Primary Servicing Agreement, the Primary
Servicer may forward its recommendation directly to the applicable Special
Servicer (with a copy to the Capmark Master Servicer) or it may forward its
recommendation with respect to such request to the Capmark Master Servicer. The
Capmark Master Servicer shall use commercially reasonable efforts to forward
such recommendation to the applicable Special Servicer within five (5) Business
Days of receipt thereof (but in no event more than 10 days of receipt thereof)
after which such Special Servicer shall inform the Capmark Master Servicer and
the applicable Primary Servicer of its decision on or prior to the date on which
such Special Servicer's time to respond has lapsed as set forth in the Primary
Servicing Agreement.
(b) [Reserved]
(c) None of the Master Servicers, any Primary Servicer or the
Special Servicers shall have any liability, and 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.
(d) If any Mortgage Loan that is not a Specially 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 applicable Master Servicer's (or Primary Servicer's) review and
determination (such determination to be approved by the applicable Special
Servicer in the same manner as in Section 8.7(a)) to either (A) enforce such
due-on-sale clause or (B) if in the best economic interest of the Trust, waive
the effect of such provision, shall be processed in the same manner as in
Section 8.7(a); 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
regarding such waiver. In connection with the request for such consent, the
Master Servicer shall prepare and deliver to Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The applicable
Master Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the applicable Special Servicer, the
Paying Agent and the Trustee, and such Master Servicer shall promptly thereafter
forward such documents to the Rating Agencies. The applicable Special Servicer
and the applicable Master Servicer shall each be entitled to (as additional
compensation) 50% of the assumption fee and 50% (or, with respect to the NCB,
FSB Loans, 100% of assumption application fees with respect to a non-Specially
Serviced Mortgage Loan, shall be payable to the NCB Master Servicer) of
assumption application fees (in each case, to the extent that (a) the consent of
such Special Servicer is required or (b) assumption is not "expressly permitted"
pursuant to the terms of the related Mortgage Loan, otherwise such Master
Servicer shall be entitled to 100% of the assumption fee and 100% of the
assumption application fee) collected from a Mortgagor in connection with the
granting or withholding such consent with respect to Mortgage Loans that are not
Specially Serviced Mortgage Loans; provided, that such fees that are allocated
to a Master Servicer pursuant hereto shall be divided between the Master
Servicer and any applicable Primary Servicer as set forth in the related Primary
Servicing Agreement.
(e) Each Master Servicer, as applicable, shall have the right to
consent to any transfers of an interest in a Mortgagor of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, and the NCB Master Servicer shall be permitted to consent to any
transfer of an interest in a Mortgagor under a Co-op Mortgage Loan in connection
with a transfer of cooperative units therein to the extent such consent is
required under the terms of the related Mortgage Loan, in each case including
any consent to transfer to any subsidiary or Affiliate of Mortgagor, to a Person
acquiring less than a majority interest in the Mortgagor or to an entity of
which the Mortgagor is the controlling beneficial owner; 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 is one of the then current
top 10 loans (by Principal Balance) in the pool (provided that such Mortgage
Loan has a then current Principal Balance of $5,000,000 or more), and (ii) the
transfer is of an equity 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, as applicable, shall be entitled to collect and receive from
Mortgagors any customary fees in connection with such transfers of interest as
additional servicing compensation to the extent the Master Servicer's collection
of such fees is not expressly prohibited under the related loan documents for
the Mortgage Loan.
(f) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the applicable
Master Servicer (pursuant to subsection (a) or (d)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, such Master Servicer 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 or Custodian, as
applicable, except to the extent such documents have been submitted to the
recording office, in which event such Master Servicer shall promptly deliver
copies of such documents to the Trustee, the Custodian and the applicable
Special Servicer.
(g) If any Mortgage Loan (other than a Co-op Mortgage Loan as to
which the NCB, FSB Subordinate Debt Conditions have been satisfied) 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 the 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,
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, sub-section (h)
below and Section 8.18 hereof. The Master Servicer shall not waive the effect of
such provision without first obtaining Rating Agency Confirmation 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 Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance or (y) has a Loan-to-Value
Ratio (including existing and proposed Junior Indebtedness, if any) that is
greater than or equal to 85% and a Debt Service Coverage Ratio (which includes
debt service on any existing and proposed Junior Indebtedness) that is less than
1.2x.
(h) Without limiting the generality of the preceding paragraph, in
the event that a Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause under any Mortgage Loan (other than a Co-op Mortgage
Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied),
such Master Servicer shall obtain relevant information for purposes of
evaluating such request for a waiver. If a Master Servicer recommends to waive
such clause, such Master Servicer shall provide to the applicable 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 applicable Special Servicer, in the form attached
hereto as Exhibit V and any other information in its possession reasonably
requested by such Special Servicer) and (A) the applicable 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 such
Special Servicer shall not unreasonably withhold such consent and any such
decision of such Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the applicable Master
Servicer in writing, within ten Business Days following such Master Servicer's
delivery of the recommendation described above and the complete Additional Lien,
Monetary Encumbrance and Mezzanine Financing Submission Package and any other
information in its possession reasonably requested by the applicable Special
Servicer to such 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 applicable Master Servicer shall not permit
any such waiver unless it has received the written consent of the applicable
Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. If a Special Servicer withholds consent
pursuant to the foregoing provisions, it shall provide the applicable Master
Servicer with a written statement and a verbal explanation as to its reasoning
and analysis. Upon consent or deemed consent by a Special Servicer to such
proposed waiver, the applicable Master Servicer shall process such request of
the related Mortgagor subject to the other requirements set forth above.
(i) The parties hereto acknowledge that, if a Seller shall have
breached the representation set forth under the heading "Defeasance and
Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
of obtaining any Rating Agency Confirmation in connection with an assumption or
defeasance of the related Mortgage Loan because the related mortgage loan
documents do not require the Mortgagor to pay costs related thereto, then it
shall be the sole obligation of the related Seller to pay an amount equal to
such insufficiency to the extent the related Mortgagor is not required to pay
such amount. Promptly upon receipt of notice of such insufficiency, the
applicable Master Servicer or the applicable Special Servicer, as applicable,
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The Master Servicer may not waive such payment
by the Mortgagor (and then seek payment for such costs and expenses from the
Seller) 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.
(j) Notwithstanding the foregoing, and regardless of whether a
particular Co-op Mortgage Loan contains specific provisions regarding the
incurrence of subordinate debt, or prohibits the incurrence of subordinate debt,
or requires the consent of the Mortgagee in order to incur subordinate debt, the
NCB Master Servicer may, nevertheless, in accordance with the Servicing
Standard, without the need to obtain any consent hereunder (and without the need
to obtain a Rating Agency Confirmation), permit the related Mortgagee to incur
subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met (as
certified in writing to the Trustee, the Paying Agent and the Operating Advisor
by the NCB Master Servicer no later than five Business Days prior to the making
of the subject subordinate loan without right of reimbursement from the Trust)
which certification shall include notice of the circumstances of the waiver,
including information necessary for the Operating Advisor to determine whether
the NCB, FSB Subordinate Debt Conditions have been satisfied; provided, that,
subject to the related Mortgage Loan documents and applicable law, the NCB
Master Servicer shall not waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related
"due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraph,
unless in any such case, all associated costs and expenses are covered without
any expense to the Trust.
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files
Upon the payment in full of any Mortgage Loan, the complete
defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan, the purchase of a Senior Loan by the holder of
a related Serviced Companion Loan or the receipt by a Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the applicable Master Servicer in the form of a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account have been or will be so
deposited) of a Servicing Officer and a request for release of the Custodian
Mortgage File in the form of Exhibit C hereto the Custodian shall promptly
release the related Custodian Mortgage File to the applicable Master Servicer
and the Trustee shall execute and deliver to such Master Servicer the deed of
reconveyance or release, satisfaction or assignment of mortgage or such
instrument releasing the lien of the Mortgage, as directed by such Master
Servicer together with the Mortgage Note. The provisions of the immediately
preceding sentence shall not, in any manner, limit or impair the right of the
Master Servicers to execute and deliver, on behalf of the Trustee, the
Certificateholders, the holders of the Serviced Companion Loans 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 or the
Serviced Companion Loans, and with respect to the Mortgaged Properties held for
the benefit of the Certificateholders and the holders of the Serviced Companion
Loans. No expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the Distribution Account but shall
be paid by the applicable Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Custodian Mortgage File, the Custodian shall, upon
request of the applicable 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 such Master Servicer or the
applicable Special Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the Certificateholders
Notwithstanding any other provisions of this Agreement, each Master
Servicer shall transmit to the Custodian, to the extent required by this
Agreement, all documents and instruments coming into the possession of such
Master Servicer from time to time and shall account fully to the Trustee (and
the Custodian on its behalf) 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, each Master Servicer in respect
of such Mortgage Loans (or Serviced Companion Loans), whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, including any funds on deposit in the applicable Certificate
Accounts (or the Serviced Companion Loan Custodial Account), shall be held by
the applicable Master Servicer for and on behalf of the Trustee and the
Certificateholders (or the holder of a Serviced Companion Loan, as applicable)
and shall be and remain the sole and exclusive property of the Trustee, subject
to the applicable provisions of this Agreement. Each Master Servicer agrees that
it shall not create, incur or subject any Servicer Mortgage File or Custodian
Mortgage File or any funds that are deposited in the Certificate Accounts or the
applicable Escrow Accounts, or any funds that otherwise are or may become due or
payable to the Trustee 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 File or Custodian Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master Servicers
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicers under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to the Master Servicing Fee and each of the Capmark
Master Servicer and the Xxxxx Fargo Master Servicer shall be entitled to the
related Primary Servicing Fee (except with respect to the NCB, FSB Loans), which
shall be payable by the Trust from amounts held in the applicable Certificate
Accounts (and from the Serviced Companion Loan Custodial Account, to the extent
related solely to each Serviced Companion Loan) or otherwise collected from the
Mortgage Loans (or Serviced Loan Groups, as applicable) and REO Loans as
provided in Section 5.2. Each of the Capmark Master Servicer and the Xxxxx Fargo
Master Servicer shall be required to pay to the Primary Servicers the related
Primary Servicing Fees (except with respect to the NCB, FSB Loans), which shall
be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the related Primary Servicers from amounts transferred to the
applicable Master Servicer in accordance with the terms of the related Primary
Servicing Agreements. The Master Servicers shall be required to pay to the
holders of the rights to the Excess Servicing Fees (including, if applicable,
the applicable Master Servicer), the Excess Servicing Fees, which shall be
payable by the Trust as provided in Section 5.1(c), unless otherwise retained by
the holders of such rights. Notwithstanding anything herein to the contrary, if
any of the holders of the right to receive Excess Servicing Fees resigns or is
no longer a Master Servicer or Primary Servicer (to the extent that such Person
was ever a Master Servicer or a Primary Servicer), as applicable, for any
reason, it will continue to have the right to receive its portion of the Excess
Servicing Fee, and any of the holders of the right to receive Excess Servicing
Fees shall have the right to assign its portion of the Excess Servicing Fee,
whether or not it is then acting as a Master Servicer or Primary Servicer
hereunder. The Capmark Master Servicer and the Xxxxx Fargo Master Servicer shall
also be entitled to the related Primary Servicing Fee (except with respect to
the NCB, FSB Loans), which shall be payable by the Trust (or the holders of the
related Serviced Companion Loans, as applicable) from amounts held in the
applicable Certificate Account (or a sub-account thereof) (or the related
Serviced Companion Loan Custodial Account, as applicable) or otherwise collected
from the Mortgage Loans (or Serviced Loan Groups, as applicable) as provided in
Section 5.2, provided that the Primary Servicing Fee payable to the applicable
Master Servicer shall only be collected from the Mortgage Loans (or Serviced
Loan Groups, as applicable) and Schedule III. There shall be no Primary
Servicing Fee payable with respect to the NCB, FSB Loans.
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, defeasance fees, extension fees, servicing
fees, default interest (excluding default interest allocable to any Serviced
Companion Loan if the holder of such Serviced Companion Loan has cured the
related default pursuant to the terms of the related Co-Lender Agreement)
payable at a rate above the Mortgage Rate (net of any amount used to pay Advance
Interest, Additional Trust Fund Expenses and Special Servicing Fees relating to
the subject Mortgage Loan (or, with respect to the Senior Mortgage Loans, the
applicable Serviced Loan Group) as provided in Section 4.5), Modification Fees,
forbearance fees, Late Fees (net of any amount used to pay Advance Interest),
other usual and customary charges and fees actually received from Mortgagors and
any other fees listed in any of the Primary Servicing Agreements, all such fees
subject to allocation pursuant to such Primary Servicing Agreements, shall be
retained by the applicable Master Servicer, provided that the applicable Master
Servicer shall be entitled to receive such compensation as set forth in Section
5.2(a)(i). If the applicable Master Servicer collects any amount payable to the
applicable Special Servicer hereunder in connection with an REO Mortgage Loan or
Specially Serviced Mortgage Loan, the applicable Master Servicer shall promptly
remit such amount to the applicable Special Servicer as provided in Section 5.2.
The applicable Master Servicer shall be required to pay (in the manner otherwise
provided herein) all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to each Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by such Master Servicer
for such Determination Date.
(d) Each Master Servicer, as applicable, shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to its respective Mortgage
Loans (including any Specially Serviced Loans) for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any Mortgagor
under applicable law, any interest or other income earned on deposits in its
respective Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements
(a) For each Distribution Date, (i) each Master Servicer shall
deliver to the Paying Agent (and, with respect to each Serviced Companion Loan,
the applicable Master Servicer shall also deliver to the holder thereof or its
servicer) no later than 12:00 noon, New York City time on the related Report
Date, the CMSA Loan Periodic Update File for the related Mortgage Loans with
respect to such Distribution Date, and (ii) each Master Servicer shall notify
the Paying Agent as soon as reasonably possible, but no later than noon, New
York City time on the Master Servicer Remittance Date, of the amount of any
Principal Prepayments and Balloon Payments that are required to be remitted by
such Master Servicer pursuant to Section 5.2(b). The applicable Special Servicer
is required to provide, in the form required under Section 9.32, all information
relating to Specially Serviced Mortgage Loans in order for the applicable Master
Servicer to satisfy its duties in this Section 8.11 not later than one Business
Day prior to the date such Master Servicer is required to distribute any report.
The applicable Master Servicer shall have no obligation to provide such
information or reports set forth in clauses (ii) and (iii) above to the extent
that it has not received such information or reports from the applicable Special
Servicer; provided, however, that such Master Servicer shall not be relieved of
its obligation to provide other information or reports as set forth in this
Section 8.11(a). Each Master Servicer shall be entitled in good faith to rely on
and shall have no liability for information provided by third parties, including
the Special Servicers.
(b) Each Master Servicer shall notify the Trustee 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 applicable
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) Each Master Servicer shall promptly inform the applicable
Special Servicer of the name, account number, location and other necessary
information concerning the applicable Certificate Accounts in order to permit
such Special Servicer to make deposits therein.
(d) [Reserved]
(e) Each Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the applicable
Special Servicer, the Operating Adviser and each Rating Agency, in each case
upon request by such Person and only to the extent such reports and information
are not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicers shall not have any obligation to deliver any statement,
notice or report that is then made available on such Master Servicer's website
or the Paying Agent's Website, provided that it has notified all parties
entitled to delivery of such reports, by electronic mail or other notice
provided in this Agreement, to the effect that such statements, notices or
reports shall thereafter be made available on such website from time to time.
(g) Each Master Servicer shall deliver or cause to be delivered to
the Paying Agent (and, in respect of each Serviced Companion Loan, the holder of
the related Serviced Companion Loan) the following CMSA Reports with respect to
the Mortgage Loans serviced by such Master Servicer (and, if applicable, the
related REO Properties) (and, if applicable, the related REO Properties and, to
the extent received from the related Other Master Servicer, a Non-Trust Serviced
Pari Passu Loan) providing the required information as of the related
Determination Date upon the following schedule: (i) a CMSA Comparative Financial
Status Report not later than each Report Date (not later than 12:00 noon, New
York City time), commencing in January 2008; (ii) a CMSA Operating Statement
Analysis Report, the CMSA Financial File and the CMSA NOI Adjustment Worksheet
in accordance with Section 8.14 of this Agreement; (iii) a CMSA Servicer Watch
List in accordance with and subject to the terms of Section 8.11(h) on each
Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008; (iv) a CMSA Loan Setup File (with respect to the initial
Distribution Date only) not later than the Report Date (not later than 12:00
noon, New York City time) in January 2008; (v) a CMSA Loan Periodic Update File
not later than each Report Date (not later than 12:00 noon, New York City time)
commencing in December 2007 (a December 2007 report will be issued by the Master
Servicer in the format and with the content as reasonably agreed by the Master
Servicer and the Paying Agent); (vi) a CMSA Property File on each Report Date
(not later than 12:00 noon, New York City time), commencing in January 2008;
(vii) a CMSA Delinquent Loan Status Report on each Report Date (not later than
12:00 noon, New York City time), commencing in January 2008; (viii) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report not later than
each Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008; (ix) a CMSA Historical Loan Modification and Corrected Mortgage
Loan Report not later than each Report Date (not later than 12:00 noon, New York
City time), commencing in January 2008; (x) a CMSA Loan Level Reserve/LOC Report
not later than each Report Date, commencing in January 2008, (xi) a CMSA Total
Loan Report not later than each Report Date (not later than 12:00 noon, New York
City time), commencing in January 2008 and (xii) a CMSA REO Status Report on
each Report Date (not later than 12:00 noon, New York City time), commencing in
January 2008. The information that pertains to Specially Serviced Mortgage Loans
and REO Properties reflected in such reports shall be based solely upon the
reports delivered by the applicable Special Servicer to the applicable Master
Servicer in writing and on a computer readable medium reasonably acceptable to
the Master Servicers and the Special Servicers on the date and in the form
required under Section 9.32. The Master Servicers' responsibilities under this
Section 8.11(g) with respect to REO Mortgage Loans and Specially Serviced
Mortgage Loans shall be subject to the satisfaction of the Special Servicers'
obligations under Section 9.32. The reporting obligations of a Master Servicer
to the Paying Agent in connection with any Serviced Loan Group shall be
construed to refer only to such information regarding the Mortgage Loans (and
the related Mortgaged Property) and by reference to the Mortgage Loans only.
Solely with respect to a Non-Trust Serviced Pari Passu Loan, the applicable
Master Servicer's responsibilities under this Section 8.11(g) shall be subject
to the performance of the related Other Master Servicer and the related Other
Special Servicer of their respective reporting obligations to the applicable
Master Servicer under the related Other Pooling and Servicing Agreement.
(h) If a Master Servicer, in accordance with the Servicing Standard,
seeks to effect a drawing on any letter of credit or debt service reserve
account under which the Trust has rights as the holder of any Mortgage Loan for
purposes other than payment or reimbursement of amounts contemplated in and by a
reserve or escrow agreement (other than after a default under an applicable
Mortgage Loan or Serviced Companion Loan), such Master Servicer shall deliver
notice thereof to the applicable Special Servicer, the Operating Adviser, the
holder of such Serviced Companion Loan, if applicable, and the Paying Agent,
which notice shall set forth (i) the unpaid Principal Balance of such Mortgage
Loan or Serviced Companion Loan immediately before and immediately after the
drawing, and (ii) a brief description of the circumstances that in such Master
Servicer's good faith and reasonable judgment and in compliance with the
Servicing Standard will entitle such Master Servicer to make such drawing. The
applicable Special Servicer shall have five Business Days to consent to such
drawing, which consent may be communicated by facsimile transmission or e-mail
and shall not be unreasonably withheld. If the applicable Special Servicer does
not respond within such five Business Day period, consent shall be deemed to
have been given.
Section 8.12 [Reserved]
Section 8.13 [Reserved]
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within 105 calendar days (or 90 days as to each Special Servicer),
or 120 days with respect to any Co-op Mortgage Loans, after the end of each of
the first three calendar quarters (in each year) for the trailing 12 months,
quarterly or year-to-date information received, commencing for the quarter
ending on March 31, 2008, each Master Servicer shall deliver 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, (and in the
case of the Initial Operating Advisor, in accordance with the Centerline Naming
Convention) prepared using the normalized quarterly, year-to-date or trailing 12
month operating statements and, in the case of Mortgage Loans other than Co-op
Mortgage Loans, rent rolls received from the related Mortgagor, if any. With
respect to Specially Serviced Mortgage Loans, the applicable Master Servicer
shall include information only to the extent provided by the applicable Special
Servicer, which a CMSA Operating Statement Analysis Report and a CMSA Financial
File shall be prepared by the applicable Special Servicer and delivered to the
applicable Master Servicer within 90 days after the end of each of the first
three quarters of each year for the trailing twelve months, quarterly or
year-to-date information received and other information utilized by the
applicable Special Servicer to prepare such report or files. With respect to any
Mortgage Loan for which a Primary Servicer is appointed as the Special Servicer
with respect to such Mortgage Loan pursuant to Section 9.39, the reports
prepared by any such Special Servicer shall only include the CMSA reports and
related data required by the related Primary Servicing Agreement, and such other
reports as are mutually agreed to by the related Primary Servicer and the
applicable Master Servicer. Not later than the Report Date (not later than 12:00
noon, New York City time) occurring in June of each year, beginning in 2008 for
year-end 2007, the applicable Master Servicer (in the case of Mortgage Loans
that are not Specially Serviced Mortgage Loans and as provided by the applicable
Special Servicer to the applicable Master Servicer for Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent and the Operating Adviser a
CMSA Operating Statement Analysis Report, a CMSA Financial File and a CMSA NOI
Adjustment Worksheet for each Mortgage Loan in electronic format (and in the
case of the Initial Operating Advisor, in accordance with the Centerline Naming
Convention), based on the most recently available year-end financial statements
and most recently available rent rolls, in each case of Mortgage Loans other
than Co-op Mortgage Loans, of each applicable Mortgagor (to the extent provided
to the applicable Master Servicer or the applicable Special Servicer by or on
behalf of each Mortgagor). In the case of Specially Serviced Mortgage Loans, as
provided to the applicable Special Servicer by the Mortgagor, such Special
Servicer shall forward such information to the applicable Master Servicer on or
before April 15 of each such year as provided for in Section 9.32(e) herein,
containing such information and analyses for each Mortgage Loan provided for in
the respective forms of CMSA Operating Statement Analysis Report, CMSA Financial
File and CMSA NOI Adjustment Worksheet. Such information provided by the
applicable Master Servicer shall include what would customarily be included in
accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income, subject in the case of a Non-Trust Serviced
Pari Passu Loan, to the receipt of such report from the related Other Master
Servicer or the related Other Special Servicer. The applicable Master Servicer
shall make reasonable efforts, consistent with the Servicing Standard, to obtain
such reports from the related Other Master Servicer or the related Other Special
Servicer. As and to the extent reasonably requested by the applicable Special
Servicer, the applicable Master Servicer shall make inquiry of any Mortgagor
with respect to such information or as regards the performance of the related
Mortgaged Property in general. The Paying Agent shall provide or make available
electronically at no cost to the Certificateholders or Certificate Owners, the
Rating Agencies, the Operating Adviser, the Depositor, the Placement Agent, the
Underwriters and, solely as it relates to a Serviced Loan Group, the holder of
the related Serviced Companion Loan, the CMSA Operating Statement Analysis
Reports, the CMSA Financial Files and the CMSA NOI Adjustment Worksheets
described above pursuant to Section 5.4(a). The applicable Master Servicer shall
make the CMSA Operating Statement Analysis Report, the operating statements,
rent rolls (except in the case of Co-op Mortgage Loans), property inspections
and CMSA NOI Adjustment Worksheet for each Mortgage Loan available to the
initial Operating Advisor using the Centerline Naming Convention on the Capmark
Master Servicer's website (the "Capmark Master Servicer's Website"), the Xxxxx
Fargo Master Servicer's website (the "Xxxxx Fargo Master Servicer's Website") or
the NCB Master Servicer's website (which shall initially be located at
xxx.xxx.xxxx (the "NCB Master Servicer's Website"), as applicable, by the
Business Day following the Distribution Date in December 2007. Each Master
Servicer shall, upon request by any of such parties, deliver copies of such
documents to such parties if such documents are not available on such Master
Servicer's website at such time, except that the Master Servicer shall in all
cases electronically deliver such documents and information for each Mortgage
Loan to the initial Operating Advisor using the Centerline Naming Convention as
provided herein. Pursuant to the Mortgage Loan Purchase Agreements, the Sellers
shall populate all fields or any information for their related Mortgage Loans
reasonably requested by the applicable Master Servicer to complete the Property
File.
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited
by applicable law or the loan documents, the Paying Agent shall make available
at its Corporate Trust Office, during normal business hours, upon reasonable
advance written notice for review by any Certificateholder, any Certificate
Owner, any Seller, any Primary Servicer, the Placement Agent, any Underwriter,
each Rating Agency, the Paying Agent or the Depositor (and the holder of a
Serviced Companion Loan, if such notice relates to such Serviced Companion
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 Loan Periodic Update Files, (iii) all
Officer's Certificates (including Officer's Certificates 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, (v) the most recent
property Inspection Reports in the possession of the Paying Agent in respect of
each Mortgaged Property, (vi) the most recent Mortgaged Property annual
operating statement and, in the case of Mortgage Loans other than Co-op Mortgage
Loans, rent roll, if any, collected by or on behalf of the Master Servicers or
the Special Servicers, (vii) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Master Servicers and/or the
Special Servicers, and (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support a
Master Servicer's determination that any Advance was not or, if made, would not
be, recoverable. 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, each Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the applicable Special Servicer, the Primary Servicers, the
Sellers, any Placement Agent, the Underwriters, the Operating Adviser, any
Certificateholder, any holder of a Serviced Companion Loan or any Certificate
Owner, upon reasonable notice and during normal business hours, reasonable
access to all information referred to in Section 8.15(a) and any additional
relevant, non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the applicable Master Servicers' or
the Paying Agent's Website or the electronic delivery of such information to the
requesting Person), in each case to the extent in its respective possession, and
access to Servicing Officers of the applicable Master Servicers responsible for
its obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the applicable Master Servicers upon request; provided, however,
that the applicable Master Servicers shall be permitted to require payment by
the requesting party (other than the Depositor, the Trustee, the Paying Agent,
the applicable Special Servicer, the Operating Adviser, any Placement Agent, any
Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by such Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require either of the Master
Servicers to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report. Notwithstanding the
above, neither of the Master Servicers shall have any liability to the
Depositor, the Trustee, the Paying Agent, the applicable Special Servicer, any
Certificateholder, any Certificate Owner, the holder of any Serviced Companion
Loan, the Placement Agent, any Underwriter, any Rating Agency or any other
Person to whom it delivers information pursuant to this Section 8.15 or any
other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against a Master Servicer (or any partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents thereof), the Trust
(from amounts held in any account (including, with respect to any such claims
relating to a Serviced Companion Loan, from accounts held in the Serviced
Companion Loan Custodial Account)) shall hold harmless and indemnify such Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
(d) Each Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicers shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
a Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to a Master Servicer making any
report or information available upon request to any Person other than the
parties hereto, such Master Servicer may require that the recipient of such
information acknowledge that such Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Paying Agent, the applicable
Special Servicer, the Primary Servicer, the Sellers, the Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders, any holder of a
Serviced Companion Loan or Certificate Owners. Any transmittal of information by
a Master Servicer to any Person other than the Trustee, the Paying Agent, the
other Master Servicer, the Special Servicers, the Rating Agencies, the Operating
Adviser or the Depositor may be accompanied by a letter from such Master
Servicer containing a disclaimer as to the confidentiality of the information
requested.
(e) Each Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that such Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) Each Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, each of the Master Servicers and the Special
Servicers shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Operating Adviser during regular business
hours at such time and for such duration as the applicable Master Servicer or
Special Servicer, and the Operating Adviser shall reasonably agree, regarding
the performance and servicing of the Mortgage Loans and REO Properties for which
such Master Servicer or Special Servicer, as the case may be, is responsible. As
a condition to such disclosure, the Operating Adviser shall execute a
confidentiality agreement in form reasonably acceptable to each Master Servicer,
each Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, each Master Servicer
agrees to provide to the Paying Agent 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 upon
the request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 8.15, any
information prepared by such Master Servicer that is required to be provided to
such holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act, including, without limitation, copies of
the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the applicable
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the applicable Master Servicer chooses to deliver the
information directly, the Depositor, the Placement Agent, the Underwriters or
the Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to a Master
Servicer making any report or information available upon request to any Person
other than the parties hereto, such Master Servicer may require that the
recipient of such information acknowledge that such Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Placement Agent, the Underwriters, any Rating Agency and/or
the Certificateholders and Certificate Owners. The Master Servicers will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, the Paying Agent, the Placement Agent or
the Underwriters) sufficient to cover the reasonable costs and expenses of
making such information available.
Section 8.17 Inspections
Each Master Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 2008, or every second calendar year beginning
in 2008 if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that each Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below 1.0x or,
with respect to Co-op Mortgage Loans, 0.90x. The foregoing sentence shall not
alter the terms of the applicable Special Servicer's obligation to inspect
Mortgaged Properties as set forth in Section 9.4(b) hereto. The applicable
Master Servicer shall cause to be prepared an Inspection Report relating to each
inspection.
With respect to the Mortgage Loans other than the RBC Loans, the
Nationwide Loans and the NCB, FSB Loans, the applicable Inspection Reports shall
be available for review by the Trustee, the General Special Servicer, the Rating
Agencies, the Placement Agent, the Underwriters, the Depositor, the Paying
Agent, the Operating Adviser (in the case of the initial Operating Advisor, in
accordance with the Centerline Naming Convention), any Certificate Owner, any
Seller and any Primary Servicer via password protocol and execution of an
agreement relating thereto on the Capmark Master Servicer's Website. With
respect to the RBC Loans and the Nationwide Loans, the applicable Inspection
Reports shall be available for review by the Trustee, the General Special
Servicer, the Rating Agencies, the Placement Agent, the Underwriters, the
Depositor, the Paying Agent, the Operating Adviser (in the case of the initial
Operating Advisor, in accordance with the Centerline Naming Convention), any
Certificate Owner, any Seller and any Primary Servicer via password protocol and
execution of an agreement relating thereto on the Xxxxx Fargo Master Servicer's
Website. With respect to the NCB, FSB Loans, the applicable Inspection Reports
shall be available for review by the Trustee, the Co-op Special Servicer, the
Rating Agencies, the Placement Agent, the Underwriters, the Depositor, the
Paying Agent, the Operating Adviser, any Certificate Owner, any Seller and any
Primary Servicer via password protocol and execution of an agreement relating
thereto on the NCB Master Servicer's Website (which shall be initially located
at xxx.xxx.xxxx) by the Business Day following the Distribution Date in December
2007. The NCB Master Servicer shall, upon request by any of such parties,
deliver copies of such documents to any of the foregoing parties if such
documents are not available on the NCB Master Servicer's Website at such time.
The applicable Special Servicer shall have the right, but no duty, to inspect or
cause to be inspected (at its own expense) every calendar year any Mortgaged
Property related to a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, provided that such Special Servicer notifies such Master Servicer prior to
such inspection.
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents
Subject to the limitations of Sections 9.39 and 12.3, each Master
Servicer shall have the following powers:
(a) (i) The applicable Master Servicer, in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or
consent of or relating to any term (including, without limitation, Master
Servicer Consent Matters set forth in Section 8.3(a) hereof and waiver of
default interest and Late Fees as provided in Section 8.3(a)) other than a
Money Term of a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, 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 applicable Master
Servicer shall notify the applicable 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 applicable Master Servicer to approve a release, then
the applicable Special Servicer shall within five Business Days provide
notice to the applicable Master Servicer on whether the applicable Master
Servicer should approve the release (and the failure of the applicable
Special Servicer to give the applicable Master Servicer such notice shall
automatically be deemed to be an approval by such Special Servicer that
such Master Servicer should grant such release). Notwithstanding the
preceding sentence, with respect to the Mortgage Loans that are not
Specially Serviced Loans, if a Master Servicer recommends to approve a
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, but excluding any waiver of default
interest and Late Fees as provided in Section 8.3(a)), the applicable
Master Servicer shall provide to the applicable Special Servicer a copy of
such Master Servicer's recommendation and the relevant information
obtained or prepared by such Master Servicer in connection therewith and
all other information in such Master Servicer's possession reasonably
requested by such Special Servicer, provided, that (A) the applicable
Special Servicer shall have the right hereunder to grant or withhold
consent to any such proposed modification, waiver, amendment or consent,
and such Special Servicer shall not unreasonably withhold such consent and
any such decision shall be in accordance with the Servicing Standard, (B)
failure of the applicable Special Servicer to notify the applicable Master
Servicer, within five Business Days following such Master Servicer's
delivery of the recommendation and all required information described
above, of its determination to grant or withhold such consent shall be
deemed to constitute a grant of such consent and (C) the applicable Master
Servicer shall not enter into any such proposed modification, waiver,
amendment or consent unless it has received the written consent of the
applicable Special Servicer or such consent has been deemed to have been
granted as described above. Notwithstanding anything in this Agreement to
the contrary, a Master Servicer shall not be required to obtain or request
the consent of the applicable 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
such Master Servicer has determined (in accordance with the Servicing
Standard) is immaterial. In any event, the applicable Master Servicer
shall promptly notify the applicable Special Servicer of any material
modification, waiver, amendment or consent executed by such Master
Servicer pursuant to this Section 8.18(a)(i) and provide to such Special
Servicer a copy thereof. Notwithstanding the foregoing provisions of this
Section 8.18, if the Mortgage Loan documents do not preclude imposition of
a requirement to or require a Mortgagor to pay a fee for an assumption,
modification, waiver, amendment or consent that would be due or partially
due to a Special Servicer, then the applicable Master Servicer shall not
waive the portion of such fee due to such Special Servicer without such
Special Servicer's approval.
Notwithstanding the foregoing, the General Special Servicer
acknowledges that the Capmark Master Servicer has delegated certain tasks,
rights and obligations to the Primary Servicer for the PCFII Loans with
respect to Post-Closing Requests pursuant to Section 8.4 of this
Agreement, and that the Primary Servicing Agreement for the PCFII Loans
classifies certain Post-Closing Requests as Category 1 Requests in which
the applicable Primary Servicer has certain authority to evaluate and
process such requests in accordance with this Agreement, the applicable
Primary Servicing Agreement and the 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 for the PCFII Loans provides for the
Capmark Master Servicer's determination of materiality of such condition,
term or provision requiring approval or consent and the referral of such
condition, term or provision to the General Special Servicer for consent
in accordance with the terms of such Primary Servicing Agreements upon a
determination of materiality. The General Special Servicer hereby
acknowledges such provisions, including that "materiality" shall include
the existence of an Adverse REMIC Event. Nothing in this Agreement,
however, shall grant the applicable Primary Servicers greater authority,
discretion or delegated rights over Post-Closing Requests than are set
forth in the applicable Primary Servicing Agreements.
(ii) A Master Servicer may, without the consent of the applicable
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 90 days following the original Maturity Date, if the Mortgagor timely
makes the Assumed Scheduled Payments and in such 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 the Mortgagor has obtained 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. Such 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) Each 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 or
amendment, that such Mortgagor pay to such 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 Regulations
Section 1.860G-2(b) of the Mortgage Loan). Each Master Servicer shall be
entitled to (as additional servicing compensation) 100% (unless, with respect to
the Capmark Master Servicer and the Xxxxx Fargo Master Servicer, consent from
the applicable Special Servicer is required, then 50%) 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 this Section 8.18. Each Master Servicer may charge the Mortgagor for any
costs and expenses (including attorneys' fees and Rating Agency Confirmation
fees) incurred by such Master Servicer or the applicable Special Servicer (which
amounts shall be reimbursed to such Special Servicer) in connection with any
request for a modification, waiver or amendment. Each Master Servicer agrees to
use its 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 such 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 a Master Servicer believes that the costs and expenses
(including attorneys' fees) to be incurred by such Master Servicer in connection
with any request for a modification, waiver or amendment will result in a
payment or reimbursement by the Trust, then such Master Servicer shall notify
the applicable Special Servicer.
(c) Each Master Servicer shall notify the Trustee, the Paying Agent
and the applicable 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 (i) allowed with respect to waiver of default interest and Late Fees as
provided in Section 8.3(a) and (ii) such documents have been submitted to the
applicable recording office, in which event such Master Servicer shall promptly
deliver copies of such documents to the Trustee. A 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.
(d) If the Mortgage Loan documents relating to a Mortgage Loan
provide that certain conditions must be satisfied prior to the applicable 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 such Master Servicer shall be permitted to
waive any such condition without obtaining the consent of the applicable Special
Servicer, provided that (1) the aggregate amount of the related release,
reduction or termination is no greater than the smaller of 10% of the
outstanding unpaid Principal Balance of the related Mortgage Loan or $75,000,
(2) the condition to be waived is deemed to be non-material in accordance with
the Servicing Standard and (3) such release, reduction or termination would not
otherwise cause an Adverse REMIC Event. Notwithstanding the foregoing, without
the applicable Special Servicer's consent or except as provided in the specific
Mortgage Loan documents, a Master Servicer shall not waive: (1) a requirement
for any such additional collateral to exist, or (2) a lock box requirement.
Section 8.19 Specially Serviced Mortgage Loans
(a) The applicable Master Servicer shall send a written notice to
the applicable Special Servicer, the Operating Adviser, Rating Agencies, the
Paying Agent, the Trustee and, solely as it relates to a Serviced Loan Group, to
the holder of the related Serviced Companion 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 applicable the Master Servicer may rely on the
Mortgage Loan Schedule) and, except for the Rating Agencies, the Paying Agent
and the Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
The applicable Special Servicer shall not be liable for its failure to deliver
the notice set forth in Section 9.36(a) if such failure is caused by its failure
to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the applicable Special Servicer, the applicable Master Servicer
shall notify the related Mortgagor of such transfer in accordance with the
Servicing Standard (the form and substance of such notice shall be reasonably
satisfactory to the applicable Special Servicer).
(c) Any calculations or reports prepared by the applicable Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to such Master Servicer in writing by the
applicable Special Servicer as provided hereby. The applicable Master Servicer
shall have no duty to investigate or confirm the accuracy of any information
provided to it by the applicable Special Servicer and shall have no liability
for the inaccuracy of any of its reports due to the inaccuracy of the
information provided by such Special Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the applicable Special Servicer, in order for such
Special Servicer to comply with its obligations under this Agreement, such
information (and in the form and medium) as such Special Servicer may reasonably
request in writing from time to time, provided that (i) the applicable Master
Servicer shall not be required to produce any ad hoc reports or incur any
unusual expense or effort in connection therewith and (ii) if such Master
Servicer elects to provide such ad hoc reports, it may require such Special
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers
(a) The Capmark Master Servicer hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Capmark Master Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the State of
California, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
Capmark Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the Capmark 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 Capmark
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 Capmark Master Servicer; and this Agreement,
assuming the due authorization, execution and delivery thereof by the
Depositor, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the
Trustee, the Paying Agent, the General Special Servicer and the Cop-op
Special Servicer, evidences the valid and binding obligation of the
Capmark Master Servicer enforceable against the Capmark 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 Capmark 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 Capmark Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the Capmark Master Servicer and the Capmark Master Servicer possesses all
licenses, permits and other authorizations necessary to perform its duties
hereunder.
(b) The NCB Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the NCB Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the NCB Master Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
NCB Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the NCB Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
NCB Master Servicer's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is bound,
which default or breach, in the good faith and reasonable judgment of the
NCB Master Servicer, is likely to affect materially and adversely either
the ability of the NCB Master Servicer to perform its obligations under
this Agreement or the financial condition of the NCB Master Servicer;
(iii) the NCB Master Servicer has the full power and authority to
enter into and consummate all transactions involving the NCB Master
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the NCB Master Servicer, enforceable against the
NCB Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) the NCB Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the NCB Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the NCB Master Servicer to perform its obligations under this Agreement
or the financial condition of the NCB Master Servicer;
(vi) no consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the NCB Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the NCB Master Servicer to perform its obligations under
this Agreement;
(vii) no litigation is pending or, to the best of the NCB Master
Servicer's knowledge, threatened against the NCB Master Servicer the
outcome of which, in the NCB Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the NCB Master Servicer
from entering into this Agreement or materially and adversely affect the
ability of the NCB Master Servicer to perform its obligations under this
Agreement; and
(viii) the NCB Master Servicer has errors and omissions insurance as
required by Section 8.2.
(c) The Xxxxx Fargo Master Servicer hereby represents and warrants
to and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Xxxxx Fargo Master Servicer is duly organized, validly
existing and in good standing as a national banking association under the
laws of the United States of America, and shall be and thereafter remain,
in compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect the Xxxxx Fargo Master Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Xxxxx Fargo 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 Xxxxx
Fargo 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 Xxxxx Fargo Master Servicer; and this
Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Capmark Master Servicer, the NCB Master Servicer,
the Paying Agent, the Trustee, the General Special Servicer and the Co-op
Special Servicer, evidences the valid and binding obligation of the Xxxxx
Fargo Master Servicer enforceable against the Xxxxx Fargo 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 Xxxxx Fargo 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 Xxxxx Fargo Master
Servicer contemplated by this Agreement are in the ordinary course of
business of the Xxxxx Fargo Master Servicer and the Xxxxx Fargo Master
Servicer possesses all licenses, permits and other authorizations
necessary to perform its duties hereunder.
(d) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(e) Any cause of action against a Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the applicable Master Servicer by any of
the Trustee or the applicable Master Servicer. The applicable Master Servicer
shall give prompt notice to the Trustee, the Depositor, the Primary Servicers
and the applicable Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
Section 8.21 Merger or Consolidation
Any Person into which a Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which such Master Servicer shall be a party, or any
Person succeeding to the business of such Master Servicer, shall be the
successor of such Master Servicer hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that each Rating Agency provides a Rating Agency Confirmation
(including, as to any such succession with respect to the applicable Master
Servicer, with respect to any securities rated by a Rating Agency evidencing
direct beneficial ownership interest in any Serviced Companion Loan). If such a
transaction occurs and the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate, or if such a transaction occurs
and the conditions set forth in the following paragraph are not met the Trustee
shall terminate, the successor's, survivor's or resulting entity's servicing of
the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
Notwithstanding the foregoing, as long as the Trust is subject to
the reporting requirements of the Exchange Act, neither Master Servicer may
remain a Master Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, unless (i) such Master Servicer is the surviving entity
of such merger, consolidation or transfer or (ii) the Depositor consents to such
merger, consolidation or transfer, which consent shall not be unreasonably
withheld (and if, within 45 days following the date of delivery of a notice by
the applicable Master Servicer to the Depositor of any merger or similar
transaction described in the prior paragraph, the Depositor shall have failed to
notify the applicable Master Servicer of the Depositor's determination to grant
or withhold such consent, such failure shall be deemed to constitute a grant of
such consent).
Section 8.22 Resignation of the Master Servicer
(a) Except as otherwise provided in Section 8.22(b) hereof, a Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that such Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of such Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed such Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by such Master Servicer to the Trustee
and the Paying Agent.
(b) A 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 (x) is available, (y) is willing to assume the
obligations, responsibilities, and covenants to be performed hereunder by such
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided and (z) assumes all
obligations of the resigning applicable Master Servicer under the related
Primary Servicing Agreements; (ii) such Master Servicer bears all costs
associated with its resignation and the transfer of servicing; and (iii) Rating
Agency Confirmation is obtained with respect to such servicing transfer, as
evidenced by a letter delivered to the Trustee by each such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by a Master Servicer
A Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by such Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) such Master Servicer gives the Depositor, the applicable Special
Servicer, the Primary Servicers, the holder of a Serviced Companion Loan (only
if such assignment/delegation relates to the related Serviced Loan Group) and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreements; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation from Fitch, S&P and DBRS; and (v) the Depositor consents to
such assignment and delegation, such consent not be unreasonably withheld. In
the case of any such assignment and delegation in accordance with the
requirements of subclause (B) of this Section, such Master Servicer shall be
released from its obligations under this Agreement, except that such Master
Servicer shall remain liable for all liabilities and obligations incurred by it
as such Master Servicer hereunder prior to the satisfaction of the conditions to
such assignment set forth in the preceding sentence. Notwithstanding the above,
such Master Servicer may appoint the Primary Servicers and Sub-Servicers in
accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicers and
Others
(a) Neither of the Master Servicers nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicers shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters, a holder of a Serviced Companion Loan or the Special
Servicers for any action taken or for refraining from the taking of any action
in good faith, or using reasonable business judgment, consistent with the
Servicing Standard; provided that this provision shall not protect any Master
Servicer or any such Person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
the Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of the Master Servicers
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person (including, without limitation, the applicable
Special Servicer) respecting any matters arising hereunder. The Master Servicers
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement; provided that each Master Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders and the
Trustee in the Mortgage Loans or the interests of the holders of the Serviced
Companion Loans (subject to the applicable Special Servicer's servicing of
Specially Serviced Mortgage Loans as contemplated herein). In such event, all
legal expenses and costs of such action shall be expenses and costs of the
Trust, and any Master Servicer shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2, subject to the provisions of
Section 4.4 hereof.
(b) In addition, the Master Servicers shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicers and conforming to the requirements
of this Agreement. Subject to the Servicing Standard, each Master Servicer shall
have the right to rely on information provided to it by the applicable Special
Servicer and Mortgagors, and will have no duty to investigate or verify the
accuracy thereof. Neither the Master Servicers, nor any partner, representative,
Affiliate, member, manager, director, officer, employee or agent, shall be
personally liable for any error of judgment made in good faith by any officer,
unless it shall be proved that such Master Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Master Servicers nor
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicers shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicers, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicers from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) a Master Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper
format) reasonably believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) a Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) a Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) a Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in electronic or
paper format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the applicable Special
Servicer, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that such Master Servicer
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of the Trustee's, the Paying Agent's or the
applicable Special Servicer's duties hereunder, as the case may be, or by reason
of negligent disregard of the Trustee's, the applicable Special Servicer's or
the Paying Agent's obligations and duties hereunder, as the case may be,
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations). A
Master Servicer shall immediately notify the Trustee, the Paying Agent and the
applicable Special Servicer, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans for which it is acting as Master Servicer
entitling such Master Servicer to indemnification hereunder, whereupon the
Trustee, the Paying Agent or the applicable Special Servicer, in each case, to
the extent the claim is related to its respective willful misfeasance, bad
faith, negligence or negligent disregard, shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Master Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee, the Paying
Agent and the applicable Special Servicer shall not affect any rights that such
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trustee's, the Paying Agent's or such Special Servicer's defense of
such claim is materially prejudiced thereby. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of such Master
Servicer hereunder. Any payment hereunder made by the Trustee, the Paying Agent
or the applicable Special Servicer pursuant to this paragraph to such Master
Servicer shall be paid from the Trustee's, the Paying Agent's or such Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent or the applicable Special Servicer shall be reimbursed by the party so
paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent or such Special Servicer, as the case
may be, was not culpable of willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or of negligent disregard of its
respective duties hereunder or the indemnified party is found to have acted with
willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) Each Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, the Serviced Companion Loans (as provided in the following
paragraph), any REO Property or the Certificates or any exercise of any right
under this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of such
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence and subject to the
provisions of Section 9.40, the indemnification described in the preceding
paragraph (including in the case of such claims or losses that relate primarily
to the administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
Provisions 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, each Serviced Companion Loan. In
the case of any such claims or 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 or the actual payment of any REMIC tax or expense, if such claims or
losses relate to a Serviced Loan Group, then such indemnification shall be paid
(x) first, out of collections on, and other proceeds of, the Senior Mortgage
Loans, as applicable, and the Serviced Companion Loans, as applicable, in the
relative proportions provided for in the applicable Co-Lender Agreement and (y)
if the collections and proceeds described in subclause (x) are not sufficient to
so indemnify such 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.
A Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to such Master Servicer) and out of the Trust
pay all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim and satisfy any settlement
or other disposition in respect of such claim. The indemnification provided
herein shall survive the termination of this Agreement or of the Master
Servicers in such capacity. The Trustee, the Paying Agent or the Master
Servicers shall promptly make from the applicable Certificate Account (and, if
and to the extent that the amount due shall be paid from collections on, and
other proceeds of, a Serviced Companion Loan as described above, out of the
Serviced Companion Loan Custodial Account) any payments certified by the
applicable Master Servicer to the Trustee and the Paying Agent as required to be
made to the applicable Master Servicer pursuant to this Section 8.25.
(b) Each Master Servicer agrees to indemnify the Trustee, the
applicable Special Servicer, the Trust, the Depositor, the Paying Agent, the
Custodian, and any partner, representative, Affiliate, member, manager,
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the applicable Special Servicer, the Depositor,
the Paying Agent, the Custodian and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of such Master Servicer's duties hereunder or by reason of negligent
disregard of such Master Servicer's obligations and duties hereunder (including
a breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation such Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the applicable Special Servicer, the Paying Agent, the Custodian or the
Depositor, as applicable, shall immediately notify the applicable Master
Servicer if a claim is made by any Person with respect to this Agreement or the
Mortgage Loans entitling the Trustee, the Depositor, the applicable Special
Servicer, the Paying Agent, the Custodian or the Trust to indemnification under
this Section 8.25(b), whereupon the applicable Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Trustee,
the applicable Special Servicer, the Paying Agent, the Custodian or the
Depositor, as applicable) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the applicable Master Servicer shall not affect any rights
the Trustee, the applicable Special Servicer, the Depositor, the Paying Agent,
the Custodian or the Trust may have to indemnification under this Agreement or
otherwise, unless the applicable Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
applicable Master Servicer, the applicable Special Servicer, the Paying Agent
and the Trustee. Any expenses incurred or indemnification payments made by the
applicable Master Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the applicable Master Servicer was not culpable of willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or of negligent disregard of its respective duties hereunder or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Master Servicers shall not have any liability to the
Depositor, the Trustee, the Paying Agent, the Special Servicers, any Other
Master Servicer, any Other Special Servicer, any Certificateholder, any
Certificate Owner, any holder of a Serviced Companion Loan, any Primary
Servicer, the Placement Agent, any Underwriter, any Rating Agency or any other
Person to whom it delivers information pursuant to the provisions of this
Agreement (based on any other Person's information or report) for federal, state
or other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against a Master Servicer (or any partners, representatives,
Affiliates, members, managers, directors, officers, employees, agents thereof),
the Trust (from amounts held in any account) shall hold harmless and indemnify
such Master Servicer from any loss or expense (including attorney fees) relating
to or arising from such claims.
(d) Each of the Other Master Servicers and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of such Other Master Servicer shall be indemnified by the Trust and held
harmless against (i) the Trust's pro rata share of any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to the related Other Pooling and Servicing Agreement and
this Agreement, and relating to the related Non-Trust Serviced Pari Passu Loan
(but excluding any such losses allocable to the related Non-Trust Serviced
Companion Loan), reasonably requiring the use of counsel or the incurring of
expenses other than any losses incurred by reason of such Other Master
Servicer's willful misfeasance, bad faith or negligence in the performance of
its duties under the related Other Pooling and Servicing Agreement and (ii) any
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses relating to the
related Non-Trust Serviced Pari Passu Loan, but only to the extent that such
losses arise out of the actions of the Master Servicers, the Special Servicers
or the Trustee, and only to the extent that such actions are in violation of
such party's duties under the provisions of this Agreement and to the extent
that such actions are the result of such party's negligence, bad faith or
willful misconduct.
(e) The Primary Servicer with respect to the PCFII Loans and any
partner, representative, Affiliate, member, manager, 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, its Primary
Servicing Agreement (but only if, and to the extent that, the Capmark Master
Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the PCFII Loans, any PCFII Loan (solely
with respect to the Primary Servicer for such PCFII Loans), any REO Property or
the Certificates or any exercise of any right under this Agreement or its
related 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 such Primary Servicer's willful
misfeasance, bad faith or negligence in the performance of duties thereunder.
Such Primary Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to such 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 related Primary
Servicing Agreement. The Trustee, the Paying Agent or the Capmark Master
Servicer shall promptly make from the applicable Certificate Account any
payments certified by such Primary Servicer with respect to the PCFII Loans to
the Trustee and the Paying Agent as required to be made to such Primary Servicer
pursuant to this Section 8.25.
(f) The Primary Servicer with respect to the PCFII Loans and the
Primary Servicer with respect to the Nationwide Loans each agrees (severally and
not jointly) to indemnify the Trustee, the General Special Servicer, the Trust,
the Depositor, the Paying Agent, the Custodian and any partner, representative,
Affiliate, member, manager, director, officer, employee, agent or Controlling
Person thereof, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses that the Trustee, the General
Special Servicer, the Depositor, the Paying Agent, the Custodian and the Trust
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of such Primary Servicer's duties under this
Agreement, its related Primary Servicing Agreement or by reason of negligent
disregard of such Primary Servicer's obligations and duties thereunder
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations), and if
in any such situation such 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 General Special Servicer, the Paying Agent, the
Custodian or the Depositor, as applicable, shall immediately notify such Primary
Servicer if a claim is made by any Person with respect to this Agreement, the
related Primary Servicing Agreement or the PCFII Loans (solely with respect to
the Primary Servicer for the PCFII Loans) or the Nationwide Loans (solely with
respect to the Primary Servicer for the Nationwide Loans) entitling the Trustee,
the Depositor, the General Special Servicer, the Paying Agent, the Custodian or
the Trust to indemnification under this Section 8.25(d), whereupon such Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Trustee, the General Special Servicer, the Paying Agent, the
Custodian 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 such Primary Servicer shall not affect any
rights the Trustee, the General Special Servicer, the Depositor, the Paying
Agent, the Custodian or the Trust may have to indemnification under this
Agreement, the related Primary Servicing Agreement or otherwise, unless such
Primary Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the related Primary Servicing Agreement and the resignation or termination
of the applicable Master Servicer, the General Special Servicer, the Paying
Agent, the Custodian and the Trustee. Any expenses incurred or indemnification
payments made by such Primary Servicer with respect to the PCFII Loans or the
Nationwide Loans, as applicable, shall be reimbursed by the party so paid, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
conduct of such Primary Servicer was not culpable or that such Primary Servicer
did not act with willful misfeasance, bad faith or negligence.
(g) The parties to this Agreement acknowledge that the Primary
Servicer with respect to the Nationwide Loans has executed an undertaking in the
form set forth in Exhibit R attached hereto, in which such Primary Servicer has
agreed to the obligations purported to be imposed on it under Section 8.25(f).
The parties to this Agreement agree that such Primary Servicer shall be a third
party beneficiary of Section 8.25(f) to the extent of the rights granted to such
Primary Servicer under such Section.
Section 8.26 [Reserved]
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Master Servicers shall act in accordance with this Agreement,
the REMIC Provisions and the Grantor Trust Provisions and related provisions of
the Code in order to create or maintain the status of the REMIC Pools created
hereby as REMICs and the Class EI Grantor Trust and each Floating Rate Grantor
Trust created hereby as a grantor trust under the Code. The Master Servicers
shall take no action or (A) cause any REMIC Pool to take any action that could
(i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii)
result in the imposition of a tax upon any REMIC Pool (including, but not
limited to, the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code or on prohibited contributions pursuant to Section 860G(d) of the
Code) or (B) cause the Class EI Grantor Trust or either Floating Rate Grantor
Trust to take any action that could (i) endanger its status as a grantor trust
or (ii) result in the imposition of any tax upon the Class EI Grantor Trust or
either Floating Rate Grantor Trust, unless the Trustee shall have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such tax. The Master Servicers shall comply with
the provisions of Article XII hereof.
Section 8.28 Termination
(a) The obligations and responsibilities of either Master Servicer
created hereby (other than the obligation of the Master Servicers to make
payments to the Paying Agent as set forth in Section 8.29 and the obligations of
the Master Servicers to the Trustee, the Paying Agent, the Special Servicers and
the Trust as set forth in Section 8.25) shall terminate (i) on the date which is
the later of (A) the final payment or other liquidation of the last Mortgage
Loan remaining outstanding (and final distribution to the Certificateholders) or
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default with respect to such Master
Servicer described in clauses 8.28(b)(iii), (iv), (viii), (ix), (x) or (xi)
(but, with respect to clause (ix), only if directed by the Certificateholders or
the Operating Adviser as set forth in the last sentence of this Section 8.28(a))
has occurred, 60 days following the date on which the Trustee or Depositor gives
written notice to such Master Servicer that such Master Servicer is terminated
or (iii) if an Event of Default with respect to such Master Servicer described
in clauses 8.28(b)(i), (ii), (v), (vi) or (vii) has occurred, immediately upon
the date on which the Trustee or the Depositor gives written notice to such
Master Servicer that such Master Servicer is terminated. After any Event of
Default, the Trustee (i) may elect (or, with respect to clause 8.28(b)(xi),
either the Trustee or the Depositor may elect) to terminate such Master Servicer
by providing such notice, and (ii) shall provide such notice if holders of
Certificates representing more than 25% of the Aggregate Certificate Balance of
all Certificates so direct the Trustee. After an Event of Default described in
Section 8.28(b)(ix) below, the Trustee shall, at the written direction of the
Operating Adviser or the holders of Certificates representing more than 51% of
the Aggregate Certificate Balance of all Certificates, terminate such Master
Servicer.
(b) "Event of Default," wherever used herein, means, with respect to
any Master Servicer, any one of the following events:
(i) any failure by such Master Servicer, at the times required
hereunder, to remit to the Paying Agent or otherwise make any payment
required to be remitted by such Master Servicer under the terms of this
Agreement, including any required P&I Advances, which continues unremedied
until 11:00 a.m. on the Distribution Date; or
(ii) any failure by such Master Servicer to (i) make a required
deposit to the applicable Certificate Account which continues unremedied
for one Business Day following the date on which such deposit was first
required to be made, or (ii) timely make any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a
period of one Business Day following the date on which notice shall have
been given to such Master Servicer by the Trustee as provided in Section
4.3(b); or
(iii) any failure on the part of such Master Servicer duly to
observe or perform in any material respect any other of the duties,
covenants or agreements on the part of such Master Servicer contained in
this Agreement (other than with respect to the duties, covenants or
agreements contained in Article XIII, for so long as the Trust is subject
to the reporting requirements of the Exchange Act) which continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to such Master Servicer by the Depositor or the Trustee; provided,
however, that if such Master Servicer certifies to the Trustee and the
Depositor that such Master Servicer is in good faith attempting to remedy
such failure, such cure period will be extended to the extent necessary to
permit the Master Servicer to cure such failure; provided, further, that
such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificates and that continues unremedied for
a period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to such Master
Servicer by the Depositor or the Trustee, provided, however, that if such
Master Servicer certifies to the Trustee and the Depositor that such
Master Servicer is in good faith attempting to remedy such breach, such
cure period will be extended to the extent necessary to permit such Master
Servicer to cure such breach; provided, further, that such cure period may
not exceed 90 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
such Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days; or
(vi) such Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to such Master Servicer
or of or relating to all or substantially all of its property; or
(vii) such Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing; or
(viii) such Master Servicer ceases to have a master servicer rating
of at least "CMS3" from Fitch and is not reinstated to such status within
30 days, or the Trustee receives written notice from Fitch to the effect
that the continuation of the Master Servicer in such capacity would result
in the downgrade, qualification or withdrawal of any rating then assigned
by Fitch to any Class of Certificates and citing servicing concerns with
such Master Servicer as the sole or a material factor in such rating
action and such notice is not rescinded within 30 days; provided that such
Master Servicer shall have 60 days after removal due to such default
within which it may sell its servicing rights to a party acceptable under
this Agreement;
(ix) such Master Servicer has been removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer, and that
Master Servicer is not reinstated to such status within 60 days;
(x) the Trustee receives written notice from DBRS to the effect that
the continuation of the Master Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by
DBRS to any Class of Certificates and citing servicing concerns with such
Master Servicer as the sole or a material factor in such rating action and
such notice is not rescinded within 60 days;
(xi) if any securities issued by an Other Securitization are rated
by Fitch, a servicing officer of such Master Servicer obtains actual
knowledge that Fitch has (a) qualified, downgraded or withdrawn its rating
or ratings of any such securities, or (b) has placed any such securities
on "watch status" in contemplation of a ratings downgrade or withdrawal
(and such qualification, downgrade, withdrawal or "watch status" placement
shall not have been withdrawn by Fitch within 60 days of the date such
servicing officer obtained such actual knowledge) and, in the case of
either of clauses (a) or (b), cited servicing concerns with such Master
Servicer as the sole or material factor in such rating action; or
(xii) subject to Section 13.8, such Master Servicer or any
Additional Servicer or Sub-Servicer appointed by such Master Servicer
(other than a Seller Sub-Servicer), shall fail to deliver any Exchange Act
reporting items required to be delivered by such servicer under Article
XIII of this Agreement at the times required under such Article.
If any Master Servicer is terminated based upon an Event of Default
set forth in clause (viii), (ix), (x) or (xi) above, then such Master Servicer
shall have the right to enter into a sub-servicing agreement or primary
servicing agreement with the applicable successor master servicer with respect
to all applicable Mortgage Loans that are not then subject to a Sub-Servicing
Agreement or Primary Servicing Agreement, so long as (A)(i) such terminated
Master Servicer (1) is on the approved select list of commercial mortgage loan
servicers maintained by S&P, (2) has a commercial loan primary servicer rating
of at least "CPS3" (or the equivalent) from Fitch and (3) is approved by DBRS,
or (ii) obtains a Rating Agency Confirmation from each Rating Agency as to which
such terminated Master Servicer does not satisfy the applicable rating criterion
described above, and (B) the Operating Adviser has consented to such Primary
Servicing or Sub-Servicing arrangement.
Section 8.29 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by a Master Servicer to the Paying Agent shall be made, shall be given
promptly in writing by such 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 such Master Servicer
(other than the obligation of such Master Servicer to pay to the Paying Agent
the amounts remaining in the applicable Certificate Account as set forth below
and the obligations of such Master Servicer to the Trustee and the Trust as
provided herein) shall terminate and such Master Servicer shall transfer to the
Paying Agent the amounts remaining in the applicable Certificate Account (and
any sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the applicable Certificate Account
and any other account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given
to a Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date
on which a written notice of termination is given to a Master Servicer pursuant
to clause (iii) of Section 8.28(a) all authority, power and rights of such
Master Servicer under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall terminate (except for any rights relating to unpaid
servicing compensation or unreimbursed Advances or, if the terminated Master
Servicer is NCB, FSB, the Excess Servicing Fee with respect to its Mortgage
Loans and all indemnities and exculpations set forth herein); provided that in
no event shall the termination of such Master Servicer be effective until a
successor servicer shall have succeeded such Master Servicer as successor
servicer, subject to approval by the Rating Agencies, notified such Master
Servicer of such designation and such successor servicer shall have assumed such
Master Servicer's obligations and responsibilities hereunder and under the
Primary Servicing Agreements, as set forth in an agreement substantially in the
form hereof, with respect to the Mortgage Loans. Except as provided in the next
sentence, the Trustee may not succeed a Master Servicer as servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of such Master Servicer pursuant to Section 8.22(b) hereof.
Notwithstanding the foregoing sentence, in the event that a Master Servicer is
terminated as a result of an event described in Section 8.28(b)(v), 8.28(b)(vi)
or 8.28(b)(vii), the Trustee shall act as successor servicer immediately upon
delivery of a notice of termination to such Master Servicer and shall use
commercially reasonable efforts within 90 days of assuming the duties of such
Master Servicer, either to satisfy the conditions of Section 8.22(b) hereof or
to transfer the duties of such Master Servicer to a successor servicer who has
satisfied such conditions. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of such Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The Master
Servicers agree to cooperate with the Trustee and the Paying Agent in effecting
the termination of a Master Servicer's responsibilities and rights hereunder as
Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee all documents and
records in electronic or other form reasonably requested by it to enable the
successor servicer designated by the Trustee to assume such Master Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by such Master Servicer in the Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
(c) If a Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (viii), (ix), (x) or (xi) of Section 8.28(b) or an
Event of Default caused by a default of a Primary Servicer under its Primary
Servicing Agreement, and if such Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within five Business Days after
receipt of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by such Master
Servicer) solicit good faith bids for the rights to service the Mortgage Loans
under this Agreement from at least three but no more than five Qualified Bidders
or, if three Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders. At the Trustee's request, such
Master Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage Loans
under this Agreement.
(d) Each bid proposal shall require any Qualified Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreements, not later than 45 days after termination of the applicable
Master Servicer hereunder. The Trustee shall select the Qualified Bidder with
the highest cash bid (or such other Qualified Bidder as the applicable Master
Servicer may direct) (the "Successful Bidder") to act as successor Master
Servicer hereunder. The Trustee shall direct the Successful Bidder to enter into
this Agreement as successor Master Servicer pursuant to the terms hereof, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
a successor Master Servicer within 45 days after the termination of a Master
Servicer hereunder or no Successful Bidder was identified within such 45-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b). During such 45-day period and until the
acceptance of appointment by a successor servicer, the Master Servicer shall
continue to service the Mortgage Loans in accordance with this Agreement.
(g) Notwithstanding anything to the contrary in this Section 8.29,
the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreements as a condition
precedent to its becoming Master Servicer hereunder.
(h) Any costs and expenses associated with the transfer of the
master servicing function (other than with respect to a termination without
cause) under this Agreement shall be borne by the predecessor Master Servicer
and shall be paid within 30 days of request therefor, otherwise, if the
applicable Master Servicer is terminated without cause, such costs and expenses
shall be payable from the Trust.
Section 8.30 Notification to Certificateholders
(a) Upon any resignation of a Master Servicer pursuant to Section
8.22 or termination of a Master Servicer pursuant to Section 8.28 or appointment
of a successor to the applicable Master Servicer, the Paying Agent shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default with
respect to a Master Servicer of which a Responsible Officer of the Paying Agent
has actual knowledge, the Paying Agent shall transmit by mail to all Holders of
Certificates and each Rating Agency notice of such Event of Default, unless such
Event of Default shall have been cured or waived.
Section 8.31 Swap Transactions
(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 Swap Transactions under
the Swap Agreement in the name of the Trust. Each of the representations,
undertakings and agreements in the Swap Transactions 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 Swap Transactions under the
Swap Agreement, including the Credit Support Annex (as defined in the Swap
Agreement) 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 CMSA Reports provided
by the Capmark Master Servicer or on information that the Paying Agent obtains
from the Swap Counterparty pursuant to each Swap Transaction, 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 each Net Swap Payment, if any, due to the Swap Counterparty under the
related Swap Transaction, based upon the projected payment that will be payable
on the related Class of Floating Rate Regular Interests pursuant to the
priorities set forth in Article VI hereof and the Pass-Through Rate of the
related Class of Floating Rate Regular Interests and the related Class of
Floating Rate Certificates and the amount of any Prepayment Premiums payable on
each such Floating Rate 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 Capmark
Master Servicer of each Net Swap Payment, if any, required to be distributed to
the Swap Counterparty pursuant to the terms of the related Swap Transaction and
will provide such notice even if no amounts are due to the Swap Counterparty.
The Capmark Master Servicer shall be deemed to have distributed the Net Swap
Payments 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 each such Net Swap Payment to the
related Master Servicer's Floating Rate Account. Accordingly, the Capmark Master
Servicer shall withhold an amount equal to the Net Swap Payments 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 Swap
Transactions.
(c) [Reserved].
(d) Promptly upon receipt of any payment or other receipt in respect
of the Floating Rate Regular Interests or the Swap Transactions, the Paying
Agent shall deposit the same into the related Floating Rate Account. If the Swap
Counterparty is required to make a Net Swap Payment to the Trust under any Swap
Transaction with respect to any Distribution Date and such Net Swap Payment is
not received by the Paying Agent by 4:00 pm New York City time on the Business
Day before such Distribution Date, then the Paying Agent shall notify the
applicable Swap Counterparty to such effect not later than 5:00 p.m. (New York
City time) on the Business Day before such Distribution Date.
(e) [Reserved].
(f) If the Swap Counterparty is required to post collateral pursuant
to a Swap Transaction, the Paying Agent shall establish an account, which shall
be an Eligible Account (a "Swap Counterparty Collateral Account"). The Paying
Agent shall deposit all collateral received from the Swap Counterparty under the
Credit Support Annex (as defined in the Swap Agreement) of the related Swap
Transaction into such Swap Counterparty Collateral Account. The only permitted
withdrawal from or application of funds on deposit in, or otherwise to the
credit of, the Swap Counterparty Collateral Account shall be (i) for application
to obligations of the Swap Counterparty under the related Swap Transaction if
such Swap Transaction becomes subject to early termination or upon default by
the Swap Counterparty or (ii) to return collateral to the Swap Counterparty when
and as required by the related Swap Transaction. The Paying Agent agrees to give
the Swap Counterparty prompt notice if it obtains knowledge that such Swap
Counterparty Collateral Account or any funds on deposit therein or otherwise to
the credit of the Swap Counterparty Collateral Account, shall become subject to
any writ, order, judgment, warrant of attachment, execution or similar process.
Funds credited to the Swap Counterparty Collateral Account shall be applied as
contemplated in the related Swap Transaction. Subject to the terms of the
related Swap Transaction, proceeds of liquidation of any Swap Transaction
collateral (if the related Swap Transaction becomes subject to early termination
or upon default by the Swap Counterparty) shall be deposited in the related
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 an applicable Fixed Interest
Distribution unless and until the interest payment on the related Floating Rate
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 Trust pursuant to each Swap
Transaction and shall remit such amount to the holders of the related Floating
Rate Certificates as part of the related Floating Rate Interest Distribution
Amount pursuant to Section 6.12. The Capmark 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 related Floating Rate Regular Interest
which is equal to the net swap payment due to the Swap Counterparty pursuant to
the related Swap Transaction (a "Net Swap Payment").
(h) In connection with any amendment to a Swap Transaction, the
Paying Agent agrees that, subject to Section 6.12 and Section 15.3(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
such Swap Transaction and agrees to obtain a Rating Agency Confirmation from
each Rating Agency.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY THE SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Certificateholders (and, solely as it relates to a Serviced Loan
Group, for the benefit of each holder of a related Serviced Companion Loan) and
the Trustee, the applicable Special Servicer shall service the Specially
Serviced Mortgage Loans and manage the related REO Properties in accordance with
the provisions of this Agreement and the Servicing Standard (subject to the
servicing of a Non Trust-Serviced Pari Passu Loan by the related Other Master
Servicer and the related Other Special Servicer in accordance with the related
Other Pooling and Servicing Agreement). Certain of the provisions of this
Article IX make explicit reference to their applicability to Mortgage Loans and
the Serviced Companion Loans; notwithstanding such explicit references,
references to "Mortgage Loans" contained in this Article IX, unless otherwise
specified, shall be construed to refer also to the related Serviced Companion
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). Certain of the provisions of this Article IX make explicit reference
to their non applicability to the Non Trust-Serviced Pari Passu Loan;
notwithstanding such explicit references, references to "Mortgage Loans,"
"Specially Serviced Mortgage Loans," "REO Mortgage Loan," "REO Property,"
"Rehabilitated Mortgage Loan" and "Mortgaged Property" contained in this Article
IX, unless otherwise specified, shall be construed to exclude the Non
Trust-Serviced Pari Passu Loan and any related real property (but any other
terms that are defined in Article I and used in this Article IX shall be
construed according to such definitions without regard to this sentence).
The General Special Servicer shall be the Special Servicer with
respect to all the Mortgage Loans (other than the NCB, FSB Loans) and other
assets of the Trust other than the Non-Trust Serviced Loan Groups and the Co-op
Trust Assets and, as such, shall service and administer such of the assets of
the Trust (other than the Non-Trust Serviced Loan Groups and the Co-op Trust
Assets) as constitute Specially Serviced Mortgage Loans and REO Properties and
shall render such incidental services as are required of such Special Servicer
with respect to such of the assets of the Trust (other than the Non-Trust
Serviced Loan Groups and the Co-op Trust Assets) as constitute assets that are
not Specially Serviced Mortgage Loans or REO Properties. The Co-op Special
Servicer shall be the Special Servicer with respect to the Co-op Trust Assets
and, as such, shall service and administer the Co-op Trust Assets as constitute
Specially Serviced Mortgage Loans or REO Property and shall render such
incidental services as are required of such Special Servicer with respect to the
Co-op Trust Assets as constitute assets that are not Specially Serviced Mortgage
Loans or REO Properties.
(b) Each Special Servicer shall cooperate with the applicable Master
Servicer and provide the applicable Master Servicer with the information
reasonably requested by such Master Servicer, in writing, to the extent required
to allow such Master Servicer to perform its servicing obligations with respect
to the Specially Serviced Mortgage Loans hereunder; provided, however, that (i)
such Special Servicer shall not be required to produce any ad hoc reports or
incur any unusual expense or effort in connection therewith and (ii) if a
Special Servicer elects to provide such ad hoc reports requested by the
applicable Master Servicer, such Special Servicer may require the applicable
Master Servicer to pay a reasonable fee to cover the costs of the preparation
thereof. A Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The applicable Special Servicer shall send a written notice to
the applicable Master Servicer, the Trustee 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 applicable Master Servicer, the
Trustee and the Paying Agent, such Mortgage Loan shall become a Rehabilitated
Mortgage Loan and will be serviced by the applicable Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan and upon the reasonable request of the applicable Special
Servicer, the applicable Master Servicer shall xxxx its records for such
Mortgage Loan to cause any monthly statements for amounts due on such Mortgage
Loan to be sent thereafter to the applicable Special Servicer rather than the
related Mortgagor. Upon receipt of any such monthly statement, the applicable
Special Servicer shall, within two Business Days, advise the applicable Master
Servicer of any changes to be made, and return the monthly statement to the
applicable Master Servicer. The applicable Master Servicer shall thereafter
promptly send the corrected monthly statement to the Mortgagor. If a Mortgage
Loan becomes a Rehabilitated Mortgage Loan, the applicable Master Servicer shall
send the monthly statement to the Mortgagor as it did before such Mortgage Loan
became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the applicable Master Servicer with
respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that
has become an REO Mortgage Loan or a Serviced Companion Loan if such Serviced
Companion Loan has become a Specially Serviced Mortgage Loan) shall be deposited
in the applicable Certificate Account, and all amounts collected by the
applicable Master Servicer with respect to a Serviced Companion Loan if such
Serviced Companion Loan has become a Specially Serviced Mortgage Loan shall be
deposited in the Serviced Companion Loan Custodial Account. The applicable
Master Servicer shall within two Business Days after receipt of any such
payment, notify the applicable Special Servicer of the receipt of such payment
and the amount thereof. The applicable Special Servicer shall, within two
Business Days thereafter, instruct the applicable Master Servicer in writing how
to apply such payment (with the application of such payments to be made in
accordance with the related Mortgage Loan documents (including the related
Co-Lender Agreement, as applicable) or in accordance with this Agreement, as
applicable).
(f) After the occurrence of any Servicing Transfer Event with
respect to any one or more Mortgage Loans that are the subject of any
Environmental Insurance Policy, (i) the applicable Special Servicer shall
monitor the dates by which any claim must be made or action must be taken under
such Environmental Insurance Policy to achieve the payment of all amounts
thereunder to which the Trust is entitled in the event the applicable Special
Servicer has actual knowledge of any event giving rise to a claim under such
Environmental Insurance Policy (an "Insured Environmental Event") and (ii) if
the applicable Special Servicer has actual knowledge of an Insured Environmental
Event with respect to such Mortgage Loan, such Special Servicer shall take
reasonable actions as are in accordance with the Servicing Standard and the
terms and conditions of the related Environmental Insurance Policy to make a
claim thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the applicable Master Servicer as a Servicing
Advance. All extraordinary expenses (but not ordinary and routine or anticipated
expenses) incurred by the applicable Special Servicer in fulfilling its
obligations under this Section 9.1 shall be paid by the Trust.
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicers
Each Special Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless the applicable Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
applicable Special Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of a Special Servicer
(or its corporate parent) is not less than two rating categories (ignoring
pluses or minuses) lower than the highest rating of the Certificates, but in any
event not less than "A" as rated by Fitch, "A" as rated by S&P and "A" as rated
by DBRS or, if not rated by DBRS, an equivalent rating such as those listed
above by at least two nationally recognized statistical rating organizations,
such Special Servicer may self-insure for the Servicer Fidelity Bond and the
Servicer Error and Omissions Insurance Policy.
Section 9.3 Sub-Servicers
Each Special Servicer shall have the right to use a Sub-Servicer on
the same terms and conditions as those set forth in Section 8.4 for a
Sub-Servicer of the applicable Master Servicer. The applicable Special Servicer
shall notify the applicable Master Servicer, the Trustee and the Operating
Adviser (and, solely as it relates to a Serviced Loan Group, the holder of the
related Serviced Companion Loan) of the appointment of any Sub-Servicer of such
Special Servicer.
Section 9.4 Special Servicers' General Powers and Duties
(a) Subject to the other terms and provisions of this Agreement
(including, but not limited to, Sections 9.39), each Special Servicer is hereby
authorized and empowered when such Special Servicer believes it appropriate in
accordance with the Servicing Standard, to take any and all the actions with
respect to Specially Serviced Mortgage Loans which the applicable Master
Servicer may perform as set forth in Section 8.3(a), including (i) to execute
and deliver, on behalf of itself or the Trust (or the holder of a Serviced
Companion 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 the Powers of
Attorney in the form of Exhibit S-2A and Exhibit S-2B hereto and shall furnish
the applicable Special Servicer from time to time, upon request, with any
additional powers of attorney of the Trust, empowering such Special Servicer to
take such actions as it determines to be reasonably necessary to comply with its
servicing, administrative and management duties hereunder, and the Trustee shall
execute and deliver or cause to be executed and delivered such other documents
as a Special Servicing Officer may request, that are necessary or appropriate to
enable such Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as such
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, such Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless such Special Servicer reasonably believes that such
action should be taken in less than five Business Days to preserve the property
of the Trust for the benefit of Certificateholders, and the Trustee may within
five Business Days of its receipt of such notice advise such Special Servicer
that it has received an Opinion of Counsel (the cost of which shall be an
expense of the Trust) from an attorney duly licensed to practice law in the
state where the related Mortgaged Property or REO Property is located, that it
is likely that the laws of the state in which said action is to be taken either
prohibit such action if taken in the name of the Trust or that the Trust would
be adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name; provided, further, that such Special Servicer
shall not be liable to the extent that it relies on the advice provided in such
Opinion of Counsel. Upon receipt of any such advice from the Trustee, the
applicable Special Servicer shall take such action in the name of such Person or
Persons, in trust for the Trust (or the holder of a Serviced Companion Loan, as
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 applicable Special Servicer in the name of the Trust (or the
holder of a Serviced Companion Loan, as applicable). In the performance of its
duties hereunder, the applicable Special Servicer shall be an independent
contractor and shall not, except in those instances where it is, after notice to
the Trustee as provided above, taking action in the name of the Trust (or the
holder of a Serviced Companion Loan, as applicable), be deemed to be the agent
of the Trust (or the holder of a Serviced Companion Loan, as applicable). The
applicable Special Servicer shall indemnify the Trustee for any loss, liability
or reasonable expense (including attorneys' fees) incurred by the Trustee or any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of it or its Affiliates in connection with
any negligent or intentional misuse of the foregoing powers of attorney
furnished to such Special Servicer by the Trustee. Such indemnification shall
survive the resignation or termination of such Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this Agreement.
The applicable Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the applicable Master Servicer or the
Depositor that is not attributable to the failure of such Special Servicer to
perform its obligations hereunder. The applicable Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the applicable Special Servicer
shall employ procedures consistent with the Servicing Standard. The applicable
Special Servicer shall conduct, or cause to be conducted, at the expense of the
Trust, inspections of the Mortgaged Properties relating to Specially Serviced
Mortgage Loans at such times and in such manner as shall be consistent with the
Servicing Standard; provided that such Special Servicer shall conduct, or cause
to be conducted, inspections of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at least once during each twelve-month period that ends
on December 31 of any calendar year (commencing with the twelve-month period
ending December 31, 2007); provided, further, that such Special Servicer shall,
at the expense of the Trust, inspect or cause to be inspected each Mortgaged
Property related to a Mortgage Loan that is delinquent for sixty (60) days in
the payment of any amounts due under such Mortgage Loan. The applicable Special
Servicer shall provide to the applicable Master Servicer (who shall provide,
solely as it relates to a Serviced Loan Group, to the holder of the related
Serviced Companion 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 Co-Lender Agreement with respect to a
Non-Trust Serviced Pari Passu Loan, the owner of such Non-Trust Serviced Pari
Passu Loan has agreed that such owner's rights in, to and under such Non-Trust
Serviced Pari Passu Loan are subject to the servicing and all other rights of
the related Other Master Servicer and the related Other Special Servicer and the
related Other Master Servicer and the related Other Special Servicer are
authorized and obligated to service and administer such Non-Trust Serviced Pari
Passu Loan pursuant to the related Other Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the applicable Special Servicer's obligations and
responsibilities hereunder and the applicable Special Servicer's authority with
respect to a Non-Trust Serviced Pari Passu Loan are limited by and subject to
the terms of the related Co-Lender Agreement and the rights of the related Other
Master Servicer and the related Other Special Servicer with respect thereto
under the related Other Pooling and Servicing Agreement. The applicable Special
Servicer shall take such actions as it shall deem reasonably necessary to
facilitate the servicing of a Non-Trust Serviced Pari Passu Loan by the related
Other Master Servicer and the related Other 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 related Other Master Servicer or the related Other Special Servicer under
the related Other 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 Sections 9.39 and 12.3, each Special
Servicer shall have the following duties and rights:
(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 in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not be
assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the applicable Special Servicer, on behalf of the Trust, shall, after
consultation with (or, if required pursuant to this Agreement, receipt of
written consent of) 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 applicable
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver.
In connection with the request for such consent, such Special Servicer shall
prepare and deliver to Fitch and S&P a memorandum outlining its analysis and
recommendation in accordance with the Servicing Standard, together with copies
of all relevant documentation. The applicable Special Servicer shall also
prepare and provide Fitch, S&P and DBRS with such memorandum and documentation
for all transfer, assumption and encumbrance consents granted for Specially
Serviced Mortgage Loans below the threshold set forth above, but for which such
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 applicable Special Servicer shall have the rights and duties set forth in
Section 8.7(d). The applicable Special Servicer shall be entitled to 100% of all
assumption fees in connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser (or, if otherwise required
pursuant to this Agreement, receipt of written consent of), the applicable
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 applicable 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 entering into such assumption or substitution agreement is
consistent with the Servicing Standard. The applicable Special Servicer shall
not condition approval of any request for assumption of a Specially Serviced
Mortgage Loan on an increase in the interest rate of such Specially Serviced
Mortgage Loan. The applicable Special Servicer shall notify the applicable
Master Servicer of any such assignment and assumption or substitution agreement
and such 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, 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 a 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 9.37 and 9.39,
and the rights and duties of the Master Servicers under Section 8.18, the
applicable 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 and/or any other amounts due and payable
with respect to such Specially Serviced Mortgage Loan (including, but not
limited to, any Late Fees or default interest), (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 applicable Special
Servicer, such default is reasonably foreseeable, (B) in the reasonable judgment
of the applicable Special Servicer, such modification, waiver or amendment would
increase the recovery on the Specially Serviced Mortgage Loan to
Certificateholders on a net present value basis (the relevant discounting of
amounts that will be distributable to Certificateholders to be performed at the
related Mortgage Rate (as demonstrated in writing by such Special Servicer to
the Trustee and the Paying Agent), (C) such modification, waiver or amendment
would not cause an Adverse REMIC Event to occur, and (D) if notice to the
Operating Adviser of such modification, waiver or amendment is required pursuant
to Section 9.39.
In no event, however, shall the applicable Special Servicer (i)
extend the Maturity Date of a Specially Serviced Mortgage Loan beyond a date
that is two years prior to the Final Rated 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 such Special
Servicer gives due consideration to the remaining term of such ground lease. The
applicable Special Servicer shall not extend the Maturity Date of any Specially
Serviced 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 Specially Serviced 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 Specially Serviced Mortgage
Loan is secured by a ground lease, the applicable 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 Specially Serviced Mortgage Loan be extended
past a date that is two years prior to the Final Rated Distribution Date. The
determination of the applicable 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 applicable 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
Specially Serviced Mortgage Loan pursuant to Section 9.5(c), if the security
interest of the Trust in such collateral can only be perfected by possession, or
if such collateral requires special care or protection, then prior to agreeing
to such substitution or addition of collateral, such 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, to the extent not inconsistent with the related Mortgage Loan
documents, the applicable Special Servicer will not permit a Mortgagor to
substitute collateral for any portion of the Mortgaged Property 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. Promptly upon
receipt of notice of such unpaid expense, regarding a Specially Serviced
Mortgage Loan, the applicable Special Servicer shall request the related Seller
as and to the extent required pursuant to the terms of the related Mortgage Loan
Purchase Agreement to make such payment by deposit to the applicable Certificate
Account. 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.
(e) The applicable Special Servicer will promptly deliver to the
applicable Master Servicer, the Operating Adviser, the Trustee, the Paying
Agent, the Rating Agencies, a notice, specifying any such assignments and
assumptions, modifications, material waivers (except any waivers with respect to
Late Fees or default interest) or amendments, 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, in
the case of Mortgage Loans, 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 applicable 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 a Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Specially Serviced
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 Regulations Section 1.860G-2(b).
Subject to the foregoing, the applicable 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 Specially Serviced 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 applicable Special Servicer, the applicable 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) Each Special Servicer shall cooperate with the applicable Master
Servicer (as provided in Section 8.7) in connection with assignments,
assumptions or substitutions 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, assumption or
substitution executed pursuant to Section 8.7(a) or Section 8.7(d) to the extent
that such Special Servicer's consent was required and the subject assignment,
assumption or substitution was not "expressly permitted" by the related Mortgage
Loan documents. The applicable Special Servicer shall be entitled to 100% of any
assumption fee (including assumption application fees) received in connection
with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) each
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 each 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,
any provision of this Agreement, the REMIC Provisions or the Grantor Trust
Provisions, including such 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 any Adverse Grantor Trust Event with respect to the Class
EI Grantor Trust or either Floating Rate Grantor Trust, (C) expose the Trust,
the Depositor, either Master Servicer, either Special Servicer, the Paying Agent
or the Trustee, or any of their respective partners, representatives,
Affiliates, members, managers, directors, officers, employees or agents, to any
material claim, suit or liability, or (D) materially expand the scope of either
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 (other than with
respect to a Specially Serviced Mortgage Loan that is a Co-op Mortgage Loan as
to which the NCB, FSB Subordinate Debt Conditions have been satisfied), 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 any 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,
then, for so long as such Mortgage Loan is included in the Trust,
the applicable 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 applicable 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 or is one of the 10 largest Mortgage Loans based on Principal
Balance or (y) such Mortgage Loan has a Loan-to-Value Ratio (which also includes
Junior Indebtedness, if any) that is greater than or equal to 85% and a Debt
Service Coverage Ratio (which also includes debt service on and any Junior
Indebtedness) 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 applicable Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, or the complete defeasance of a Specially Serviced Mortgage Loan,
such Special Servicer will within 2 Business Days notify the applicable Master
Servicer. The applicable Special Servicer shall determine, in accordance with
the Servicing Standard, whether an instrument of satisfaction shall be delivered
and, if such Special Servicer determines that such instrument should be
delivered, such Special Servicer shall deliver written approval of such delivery
to the applicable Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the applicable Special Servicer and delivery
to the Trustee or Custodian of a Request for Release signed by a Special
Servicing Officer substantially in the form of Exhibit C, release the related
Mortgage File to such Special Servicer. After the transfer of servicing with
respect to any Specially Serviced Mortgage Loan to the applicable Special
Servicer, in accordance with the Servicing Standard, the applicable Master
Servicer shall notify, in writing, the Mortgagor under each Specially Serviced
Mortgage Loan transferred to the applicable Special Servicer, of such transfer.
(c) [Reserved]
(d) The applicable Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the applicable Master Servicer all
documents and instruments in the possession of such Special Servicer related to
such Rehabilitated Mortgage Loan. Prior to the transfer of servicing with
respect to any Rehabilitated Mortgage Loan to the applicable Master Servicer in
accordance with the Servicing Standard, the applicable Special Servicer shall
notify, in writing, each Mortgagor under each Rehabilitated Mortgage Loan of
such transfer.
Section 9.7 Documents, Records and Funds in Possession of the
Special Servicers to Be Held for the Trustee
(a) Each Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of such Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the applicable Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by such Special Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage
Loan or any REO Property shall be remitted to the applicable Master Servicer
within two Business Days of receipt for deposit into the applicable Certificate
Account, except that if such amounts relate to REO Income, they shall be
deposited in the applicable REO Account. The applicable Special Servicer shall
provide access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the applicable Master Servicer, the Paying Agent,
the Custodian, the Operating Adviser and their respective agents and accountants
at any time upon reasonable written request and during normal business hours,
provided that such Special Servicer shall not be required to take any action or
provide any information that such Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement hereunder
or will result in any material liability for which it is not indemnified
hereunder; provided, further, that the Trustee and the Paying Agent shall be
entitled to receive from the applicable 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 applicable
Special Servicer shall not be responsible for determining whether such
information is sufficient for the Trustee's, the applicable Master Servicer's,
the Paying Agent's or the Operating Adviser's purposes.
(b) Each Special Servicer hereby acknowledges that the Trust
(and/or, if in connection with a Serviced Loan Group, the holder of the related
Serviced Companion Loan) 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, such Special Servicer that
are collected by such Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which such Special Servicer is entitled hereunder); and each 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, such Special Servicer, shall be held by such Special Servicer for
and on behalf of the Trust (or each holder of a Serviced Companion Loan, as
applicable).
(c) Each Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, nor assert by
legal action or otherwise any claim or right of setoff against any Specially
Serviced Mortgage Loan or any funds, collected on, or in connection with, a
Specially Serviced Mortgage Loan.
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers
(a) Centerline Servicing Inc., in its capacity as the General
Special Servicer, hereby represents and warrants to and covenants with the
Trustee and the Paying Agent, as of the Closing Date:
(i) the General Special Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Florida, and the General Special Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) the execution and delivery of this Agreement by the General
Special Servicer, and the performance and compliance with the terms of
this Agreement by the General Special Servicer, will not violate the
General Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets which default or breach in the
reasonable judgment of the General Special Servicer, is likely to affect
materially and adversely either the ability of the General Special
Servicer to perform its obligations under this Agreement or the financial
condition of the General Special Servicer;
(iii) the General Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the General Special Servicer, enforceable
against the General Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) the General Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the General Special Servicer's
reasonable judgment, is likely to affect materially and adversely either
the ability of the General Special Servicer to perform its obligations
under this Agreement or the financial condition of the General Special
Servicer;
(vi) no litigation is pending or, to the best of the General Special
Servicer's knowledge, threatened against the General Special Servicer the
outcome of which, in the General Special Servicer's reasonable judgment,
could reasonably be expected to prohibit the General Special Servicer from
entering into this Agreement or that, in the General Special Servicer's
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement;
(vii) the General Special Servicer has errors and omissions
insurance coverage which is in full force and effect and complies with the
requirements of Section 9.2 hereof; and
(viii) no consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the General Special Servicer with this Agreement, or the
consummation by the General Special Servicer of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as have
been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the General Special
Servicer under this Agreement.
(b) The Co-op Special Servicer, hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the Closing Date:
(i) The Co-op Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the United States,
and the Co-op Special Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The Co-op Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Co-op Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the good faith
and reasonable judgment of the Co-op Special Servicer, is likely to affect
materially and adversely either the ability of the Co-op Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Co-op Special Servicer.
(iii) The Co-op Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op Special
Servicer contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Co-op Special Servicer, enforceable against
the Co-op Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(v) The Co-op Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand of
any federal, state or local governmental or regulatory authority, which
violation, in the Co-op Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-op Special Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the Co-op Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the Co-op Special
Servicer's knowledge, threatened against the Co-op Special Servicer the
outcome of which, in the Co-op Special Servicer's good faith and
reasonable judgment, could reasonably be expected to prohibit the Co-op
Special Servicer from entering into this Agreement or materially and
adversely affect the ability of the Co-op Special Servicer to perform its
obligations under this Agreement.
(viii) The Co-op Special Servicer has errors and omissions insurance
as required by Section 9.2.
(ix) As of the Closing Date, the Co-op Special Servicer is not a
party to any sub-servicing agreement providing for the performance of
duties of the Co-op Special Servicer by any Sub-Servicer with respect to
any Co-op Mortgage Loans or related REO Properties.
(c) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(d) Any cause of action against a 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 applicable Special Servicer by
any of the Trustee, the applicable Master Servicer or the Paying Agent. Each
Special Servicer shall give prompt notice to the Trustee, the Paying Agent, the
Depositor, the Operating Adviser and the applicable Master Servicer of the
occurrence, or the failure to occur, of any event that, with notice, or the
passage of time or both, would cause any representation or warranty in this
Section made by such Special Servicer to be untrue or inaccurate in any respect.
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies
(a) For all REO Property, the applicable Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain with a
Qualified Insurer a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount which is not less than the full
replacement cost of the improvements of such REO Property or in an amount not
less than the unpaid Principal Balance plus all unpaid interest and the
cumulative amount of Servicing Advances (plus Advance Interest) made with
respect to such Mortgage Loan and each Serviced Companion Loan, whichever is
less, but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause. If the improvements to the Mortgaged Property are in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available), the applicable Special Servicer shall maintain a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration in an amount representing coverage equal to the lesser
of the then outstanding Principal Balance of the Specially Serviced Mortgage
Loan and unpaid Advances (plus Advance Interest) and the maximum insurance
coverage required under such current guidelines. It is understood and agreed
that the applicable Special Servicer has no obligation to obtain earthquake or
other additional insurance on REO Property, except as required by law and,
nevertheless, at its sole discretion and at the Trust's expense, it (if required
at origination and is available at commercially reasonable rates) may obtain
such earthquake insurance. The applicable Special Servicer shall use its
reasonable efforts, consistent with the Servicing Standard, to obtain a
comprehensive general liability insurance policy for all REO Properties. The
applicable Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by such Special Servicer in accordance with the
Servicing Standard) and to the extent consistent with the Servicing Standard,
use its reasonable efforts to maintain a Rent Loss Policy covering revenues for
a period of at least twelve months and a comprehensive general liability policy
with coverage comparable to prudent lending requirements in an amount not less
than $1,000,000 per occurrence. All applicable policies required to be
maintained by the Special Servicers pursuant to this Section 9.9(a) shall name
the Trustee as loss payee. The costs of such insurance shall be paid by the
applicable Master Servicer as a Servicing Advance pursuant to Section 4.2,
subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by a 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, a Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at commercially reasonable rates consistent with the
Servicing Standard. Each Special Servicer shall notify the Trustee of any such
determination.
Each Special Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 9.9 either (i) if such Special
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable REO
Property serviced by it, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer or (ii) if such Special Servicer (or its corporate parent) self-insures
for its obligations, provided that the rating of such Person's long-term debt is
not less than "A" by Fitch, "A" by S&P and "A(low)" by DBRS (or, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations). In the event
that the applicable Special Servicer shall cause any REO Property to be covered
by such a master force placed or blanket insurance policy, the incremental cost
of such insurance allocable to such REO Property (i.e., other than any minimum
or standby premium payable for such policy whether or not any REO Property is
then covered thereby), shall be paid by such Special Servicer, at its option, or
by the applicable Master Servicer, as a Servicing Advance, subject to the
provisions of Section 4.4 hereof. If such policy contains a deductible clause,
such Special Servicer shall, if there shall not have been maintained on the
related REO Property a policy complying with this Section 9.9 and there shall
have been a loss that would have been covered by such policy, deposit in the
applicable Certificate Account the amount not otherwise payable under such
master force placed or blanket insurance policy because of such deductible
clause to the extent that such deductible exceeds (i) the deductible under the
related Mortgage Loan (or Serviced Companion Loan) or (ii) if there is no
deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related REO Property which is consistent with the Servicing Standard, and
deliver to the Trustee an Officer's Certificate describing the calculation of
such amount. In connection with its activities as administrator and servicer of
the REO Properties, the applicable Special Servicer agrees to present, on its
behalf and on behalf of the Trustee, claims under any such master force placed
or blanket insurance policy.
Section 9.10 Presentment of Claims and Collection of Proceeds
The applicable Special Servicer will prepare and present or cause to
be prepared and presented on behalf of the Trustee all claims under the
Insurance Policies with respect to REO Property, and take such actions
(including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to recover under such policies. Any
proceeds disbursed to such Special Servicer in respect of such policies shall be
promptly remitted to the applicable Certificate Account, upon receipt, except
for any amounts realized that are to be applied to the repair or restoration of
the applicable REO Property in accordance with the Servicing Standard. Any
extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by such Special Servicer in fulfilling its obligations under this
Section 9.10 shall be paid by the Trust.
Section 9.11 Compensation to the Special Servicers
(a) As compensation for its activities hereunder, each Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. The applicable Special Servicer
shall be entitled to receive a Liquidation Fee from the proceeds received in
connection with a full or partial liquidation (net of related costs and expenses
of such liquidation) of a Specially Serviced Mortgage Loan or REO Property
(whether arising pursuant to a sale, condemnation, casualty or otherwise). With
respect to each REO Mortgage Loan that is a successor to a Mortgage Loan secured
by two or more Mortgaged Properties, the reference to "REO Property" in the
preceding sentence shall be construed on a property-by-property basis to refer
separately to the acquired real property that is a successor to each of such
Mortgaged Properties, thereby entitling the applicable Special Servicer to a
Liquidation Fee from the Liquidation Proceeds received in connection with a
final disposition of, and Condemnation Proceeds or Insurance Proceeds received
in connection with, each such acquired property as the Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds related to that property are
received.
(b) The applicable Special Servicer shall be entitled to cause the
applicable Master Servicer to withdraw (i) from the applicable Certificate
Account, the Special Servicer Compensation in respect of each Mortgage Loan and
(ii) from the Serviced Companion Loan Custodial Account, to the extent solely
related to a Serviced Companion Loan, in the time and manner set forth in
Section 5.2 of this Agreement. The applicable Special Servicer shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest payable at a rate above the Mortgage Rate (net of amounts used to pay
Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees,
Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as
provided in Section 4.5) in accordance with Section 5.2(a) or other usual and
customary charges and fees actually received from the Mortgagor in connection
with any Specially Serviced Mortgage Loan shall be retained by the applicable
Special Servicer, to the extent not required to be deposited in the applicable
Certificate Account pursuant to the terms of this Agreement (other than any such
fees payable in connection with the Non Trust-Serviced Pari Passu Loan). The
applicable Special Servicer shall also be permitted to receive such compensation
as set forth in Section 5.2(a)(ii), to the extent provided for herein from funds
paid by the applicable Mortgagor. To the extent any component of Special
Servicer Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the applicable Special Servicer shall use reasonable good faith
efforts to collect such amounts from the related Mortgagor, and to the extent so
collected, in full or in part, such Special Servicer shall not be entitled to
compensation for the portion so collected therefor hereunder out of the Trust.
Section 9.12 Realization Upon Defaulted Mortgage Loans
(a) The applicable Special Servicer, in accordance with the
Servicing Standard and subject to Sections 9.4(a), 9.36 and 9.39, shall use its
reasonable efforts to foreclose upon, repossess or otherwise comparably convert
the ownership of Mortgaged Properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments of
such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of ownership,
such Special Servicer shall follow the Servicing Standard.
(b) Each 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 such Special
Servicer; or
(ii) such Special Servicer shall have received a Nondisqualification
Opinion (the cost of which shall be reimbursed by the Trust) to the effect
that the holding of such personal property by any REMIC Pool will not
cause the imposition of a tax on such REMIC Pool under the Code or cause
such REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
applicable Special Servicer shall not, on behalf of the Trust, obtain title to a
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and
shall not otherwise acquire possession of, or take any other action with respect
to, any Mortgaged Property, if, as a result of any such action the Trust or any
trust that holds a Serviced Companion 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 applicable Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or Affiliate
of the applicable Master Servicer or the applicable Special Servicer) who
regularly conducts environmental site assessments in accordance with the
standards of FNMA in the case of multi-family mortgage loans and customary
servicing practices in the case of commercial loans for environmental
assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert that taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably
likely to produce a greater recovery on a net present value basis than
pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened
at such Mortgaged Property relating to the use, management, disposal or
release of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation, testing,
monitoring, removal, clean-up or remediation could be required under any
federal, state or local law or regulation, or that, if any such materials
are present for which such action could be required, after consultation
with an environmental expert taking such actions with respect to the
affected Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions (after
taking into account the projected costs of such actions); provided,
however, that such compliance pursuant to clause (i) and (ii) above or the
taking of such action pursuant to this clause (iii) shall only be required
to the extent that the cost thereof is a Servicing Advance of the
applicable Master Servicer pursuant to this Agreement, subject to the
provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the applicable Master Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in the
latter event, the applicable Special Servicer shall use its good faith
reasonable business efforts to recover such cost from the Mortgagor.
(e) If the applicable Special Servicer determines, pursuant to
Section 9.12(c), that taking such actions as are necessary to bring any
Mortgaged Property into compliance with applicable Environmental Laws, or taking
such actions with respect to the containment, removal, clean-up or remediation
of hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials affecting any such Mortgaged Property, is not
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions) or than not pursuing a claim under the Environmental Insurance
Policy, then such Special Servicer shall take such action as it deems to be in
the best economic interest of the Trust (or, if in connection with a Serviced
Loan Group, in the best economic interests of the Trust and the holder of the
related Serviced Companion Loan, as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the applicable
Special Servicer determines that a material possibility exists that Liquidation
Expenses with respect to Mortgaged Property (taking into account the cost of
bringing it into compliance with applicable Environmental Laws) would exceed the
Principal Balance of the related Mortgage Loan, such Special Servicer shall not
attempt to bring such Mortgaged Property into compliance and shall not acquire
title to such Mortgaged Property unless it has received the written consent of
the Trustee to such action.
Notwithstanding any provision of this Agreement to the contrary, the
applicable Special Servicer shall not foreclose on any Mortgaged Property in
anticipation of pursuing a claim under the related Environmental Insurance
Policy, unless such Special Servicer shall have first reviewed such
Environmental Insurance Policy.
(f) The applicable Special Servicer shall have the right to
determine, in accordance with the Servicing Standard, the advisability of
maintaining any action with respect to any Specially Serviced Mortgage Loan,
including, without limitation, any action to obtain a deficiency judgment with
respect to any Specially Serviced Mortgage Loan.
Section 9.13 Foreclosure
In the event that the Trust obtains, through foreclosure on a
Mortgage or otherwise, the right to receive title to a Mortgaged Property, the
applicable Special Servicer, as its agent, shall direct the appropriate party to
deliver title to the REO Property to the Trustee or its nominee.
The applicable Special Servicer may consult with counsel to
determine when an Acquisition Date shall be deemed to occur under the REMIC
Provisions with respect to the Mortgaged Property, the expense of such
consultation being treated as a Servicing Advance related to the foreclosure,
subject to the provisions of Section 4.4 hereof. The applicable Special
Servicer, on behalf of the Trust (and, if in connection with a Serviced Loan
Group, the holder of the related Serviced Companion Loan), shall sell the REO
Property expeditiously, but in any event within the time period, and subject to
the conditions, set forth in Section 9.15. Subject to Section 9.15, the
applicable Special Servicer shall manage, conserve, protect and operate the REO
Property for the holders of beneficial interests in the Trust solely for the
purpose of its prompt disposition and sale.
Section 9.14 Operation of REO Property
(a) The applicable 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, if in connection
with a Serviced Loan Group, the holder of the related Serviced Companion Loan)
in the name of "Xxxxx Fargo Bank, National Association, as Paying Agent, on
behalf of LaSalle Bank National Association, as Trustee for the Holders of
Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates Series 2007-IQ16 and the holders of the
Serviced Companion Loans, as their interests may appear" (each, an "REO
Account"), which shall be an Eligible Account. Amounts in any REO Account shall
be invested in Eligible Investments. The applicable Special Servicer shall
deposit all funds received with respect to an REO Property in the applicable REO
Accounts within two days of receipt. The applicable 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 applicable Special Servicer shall notify the Trustee and the
applicable Master Servicer in writing of the location and account number of each
REO Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before 2:00 p.m. on each Special Servicer Remittance Date,
the applicable Special Servicer shall withdraw from the applicable REO Account
and remit to the applicable Master Servicer for deposit in the applicable
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties; provided, however, that (i) such Special
Servicer may retain in such REO Account such portion of such proceeds and
collections as may be necessary to maintain in such REO Account sufficient funds
for the proper operation, management and maintenance of the related REO
Property, including, without limitation, the creation of reasonable reserves for
repairs, replacements, and necessary capital improvements and other related
expenses. The applicable Special Servicer shall notify the applicable Master
Servicer of all such remittances (and the REO Properties to which the
remittances relate) made into the applicable Certificate Account and (ii) the
applicable Special Servicer shall be entitled to withdraw from the REO Account
and pay itself as additional special servicing compensation any interest or net
reinvestment income earned on funds deposited in the applicable REO Account. The
amount of any losses incurred in respect of any such investments shall be for
the account of the applicable Special Servicer which shall deposit the amount of
such loss (to the extent not offset by income from other investments) in the
applicable REO Account, out of its own funds immediately as realized. If the
applicable Special Servicer deposits in any REO Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such REO
Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the applicable
Special Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and prohibitions of
this Agreement and any applicable consultation or consent rights of the holder
of any Serviced Companion Loan (or Operating Adviser on its behalf (pursuant to
the related Co-Lender Agreement or otherwise)) to do any and all things in
connection therewith as are consistent with the Servicing Standard, subject to
the REMIC Provisions, and in such manner as the applicable Special Servicer
deems to be in the best interest of the Trust (or, with respect to a Serviced
Loan Group, in the best interests of the Trust and the holder of the related
Serviced Companion Loan, 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 applicable Master Servicer or the Trust subject to Sections
4.4 in accordance with Section 4.6(d)), to the extent such amounts cannot be
paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease
and sell such REO Property (other than capital expenditures).
(d) The applicable Special Servicer may, and to the extent necessary
to (i) preserve the status of the REO Property as "foreclosure property" under
the REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in
connection with the operation and management of such Mortgaged Property
underlying the REO Property and (B) deposit on a daily basis all amounts
payable to the Trust in accordance with the contract between the Trust and
the Independent Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve such 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 such Special
Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) such Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
(e) Each Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
(and, if applicable, the holders of the Serviced Companion Loans) pursuant to
this subsection (d) for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. All fees of the Independent Contractor (other
than fees paid for performing services within the ordinary duties of the
applicable Special Servicer which shall be paid by such Special Servicer) shall
be paid from the income derived from the REO Property. To the extent that the
income from the REO Property is insufficient, such fees shall be advanced by the
applicable Master Servicer as a Servicing Advance, subject to the provisions of
Section 4.4 and Section 4.6(d) hereof.
(f) Notwithstanding any other provision of this Agreement, the
applicable 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 (excluding the Mortgaged Property relating to a Non-Trust Serviced Pari
Passu Loan) which might cause the REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) or result in the receipt
by any REMIC Pool of any "income from nonpermitted assets" within the meaning of
Section 860F(a)(2) of the Code or any "net income from foreclosure property"
which is subject to tax under the REMIC Provisions unless (i) the Trustee and
the applicable Special Servicer have received an Opinion of Counsel (at the
Trust's sole expense) to the effect that, under the REMIC Provisions and any
relevant proposed legislation, any income generated for REMIC I by the REO
Property would not result in the imposition of a tax upon REMIC I, or (ii) in
accordance with the Servicing Standard, the applicable Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
applicable Special Servicer shall notify the Trustee, the Paying Agent and the
applicable Master Servicer of any election by it to incur such tax, and the
applicable 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 applicable Special Servicer and
pay the applicable tax from the amounts collected by such Special Servicer.
Subject to, and without limiting the generality of the foregoing,
the applicable Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent Contractor,
or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days
after the Acquisition Date; unless, in any such case, such 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 such Special Servicer may take such actions as are
specified in such Opinion of Counsel.
Section 9.15 Sale of REO Property
(a) In the event that title to any REO Property (excluding the
Mortgaged Property relating to a Non-Trust Serviced Pari Passu Loan) is acquired
by the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The applicable Special Servicer, after notice to the Operating
Adviser, shall sell any REO Property as soon as practicable consistent with the
objective of maximizing proceeds for all Certificateholders (and, with respect
to a Serviced Loan Group, for the Certificateholders and the holder of the
related Serviced Companion Loan, 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 Final Rated Distribution Date, unless
(i) the Trustee, on behalf of the applicable REMIC Pool, has been granted an
extension of time (an "Extension") (which extension shall be applied for at
least 60 days prior to the expiration of the period specified above) by the
Internal Revenue Service to sell such REO Property (a copy of which shall be
delivered to the Paying Agent upon request), in which case the applicable
Special Servicer shall continue to attempt to sell the REO Property for its fair
market value for such period longer than the period specified above as such
Extension permits or (ii) the applicable Special Servicer seeks and subsequently
receives, at the expense of the Trust, a Nondisqualification Opinion, addressed
to the Trustee and such Special Servicer, to the effect that the holding by the
Trust of such REO Property subsequent to the period specified above after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause
the related REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Trustee has not received an Extension or
such Opinion of Counsel and the applicable Special Servicer is not able to sell
such REO Property within the period specified above, or if an Extension has been
granted and the applicable Special Servicer is unable to sell such REO Property
within the extended time period, such 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
such Special Servicer) in accordance with the Servicing Standard; provided,
however, that if an Interested Person intends to bid on the REO Property, (i)
such Special Servicer (or, if such Interested Person is such Special Servicer or
an Affiliate of such Special Servicer, the Trustee) shall promptly obtain, at
the expense of the Trust, an Appraisal of such REO Property (or internal
valuation in accordance with the procedures specified in Section 6.9) and (ii)
the Interested Person shall not bid less than the fair market value set forth in
such Appraisal. The Depositor may not purchase REO Property at a price in excess
of the fair market value thereof.
Notwithstanding the foregoing, no Interested Person shall be
permitted to purchase the REO Property at a price less than an amount equal to
the fair value of the REO Property, as determined by the applicable Special
Servicer (or, if such Interested Person is the applicable Special Servicer or an
Affiliate of the applicable Special Servicer, the Trustee). Prior to the
applicable Special Servicer's or Trustee's, as applicable, determination of fair
value referred to above, the fair value of an REO Property shall be deemed to be
an amount equal to the Purchase Price. The applicable Special Servicer or
Trustee, as applicable, shall determine the fair value of an REO Property as
soon as reasonably practical after receipt of notice of an Interested Party's
desire to purchase such REO Property, and the applicable Special Servicer or
Trustee, as applicable, shall promptly notify such Interested Party (and the
Trustee, if applicable) of the fair value. The applicable Special Servicer or
Trustee, as applicable, is required to recalculate the fair value of the REO
Property if there has been a material change in circumstances or the applicable
Special Servicer or Trustee, as applicable, has received new information
(including the receipt of a third party bid to purchase the REO Property),
either of which has a material effect on the fair value, provided that the
applicable Special Servicer or Trustee, as applicable, shall be required to
recalculate the fair value of the REO Property if the time between the date of
last determination of the fair value of the REO Property and the date of the
purchase of the REO Property by such Interested Party has exceeded 60 days. Upon
any recalculation, the applicable Special Servicer or Trustee, as applicable,
shall be required to promptly notify in writing such Interested Party (and the
Trustee, if applicable) of the revised fair value. In determining fair value,
the applicable Special Servicer or Trustee, as applicable, shall take into
account, among other factors, the results of any appraisal or updated appraisal
that it or the applicable Master Servicer may have obtained in accordance with
this Agreement within the prior twelve months; the physical condition of the REO
Property; the state of the local economy; any other bids received with respect
to the REO Property; and the Trust's obligation to dispose of any REO Property
as soon as practicable consistent with the objective of maximizing proceeds for
all Certificateholders (and, with respect to a Serviced Loan Group, for the
Certificateholders and the holder of the related Serviced Companion Loan, as a
collective whole), but in no event later than the three-year period (or such
extended period) specified in this Section 9.15. In performing its obligations
under this Section 9.15(a), the applicable Special Servicer or the Trustee, as
applicable, may, at the expense of the party desiring to purchase the REO
Property, engage an appraiser or other expert in real estate matters to
determine the fair value of an REO Property and may rely conclusively upon such
Person's determination, which determination shall take into account the factors
set forth in the preceding sentence. Any sale of REO Property related to a
Serviced Loan Group shall be subject to and in accordance with the related
Co-Lender Agreement.
(b) Within 30 days of the sale of the REO Property, the applicable
Special Servicer shall provide to the Trustee, the Paying Agent and the
applicable Master Servicer (and, if in connection with a Serviced Loan Group,
the holder of the related Serviced Companion Loan) a statement of accounting for
such REO Property, including without limitation, (i) the Acquisition Date for
the REO Property, (ii) the date of disposition of the REO Property, (iii) the
sale price and related selling and other expenses, (iv) accrued interest
(including interest deemed to have accrued) on the Specially Serviced Mortgage
Loan to which the REO Property related, calculated from the Acquisition Date to
the disposition date, (v) final property operating statements, and (vi) such
other information as the Trustee or the Paying Agent (and, if in connection with
a Serviced Loan Group, the holder of the related Serviced Companion Loan) may
reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the applicable Certificate Account within one
Business Day of receipt.
Section 9.16 Realization on Collateral Security
In connection with the enforcement of the rights of the Trust to any
property securing any Specially Serviced Mortgage Loan other than the related
Mortgaged Property, the applicable Special Servicer shall consult with counsel
to determine how best to enforce such rights in a manner consistent with the
REMIC Provisions and shall not, based on a Nondisqualification Opinion addressed
to the applicable Special Servicer and the Trustee (the cost of which shall be
an expense of the Trust) take any action that could result in the failure of any
REMIC Pool to qualify as a REMIC while any Certificates are outstanding, unless
such action has been approved by a vote of 100% of each Class of
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders).
Section 9.17 [Reserved]
Section 9.18 [Reserved]
Section 9.19 [Reserved]
Section 9.20 Merger or Consolidation
Any Person into which a Special Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which a Special Servicer shall be a party, or any
Person succeeding to substantially all of the servicing business of a Special
Servicer, shall be the successor of such Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation (including, as to any such succession with respect to
such Special Servicer, with respect to any securities rated by a Rating Agency
evidencing interest in a Serviced Companion Loan). If the conditions to the
proviso in the foregoing sentence are not met, the Trustee may terminate, and if
the conditions to the proviso in the following paragraph are not met, the
Trustee shall terminate, such Special Servicer's servicing of the Specially
Serviced Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Section 9.31.
Notwithstanding the foregoing, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, a Special Servicer may not
remain a Special Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, except to the extent (i) such Special Servicer is the
surviving entity of such merger, consolidation or transfer or (ii) the Depositor
consents to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld.
Section 9.21 Resignation of Special Servicers
(a) Except as otherwise provided in Section 9.20 or this Section
9.21, a Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that such Special Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination permitting the resignation of such Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the applicable
Master Servicer, the Operating Adviser and the Trustee. No such resignation
shall become effective until a successor servicer designated by the Operating
Adviser and the Trustee shall have (i) assumed such Special Servicer's
responsibilities and obligations under this Agreement and (ii) Rating Agency
Confirmation (including with respect to any securities rated by a Rating Agency
evidencing interest in a Serviced Companion Loan) shall have been obtained.
Notice of such resignation shall be given promptly by the applicable Special
Servicer to the applicable Master Servicer, the Trustee and the Paying Agent.
(b) Each Special Servicer may resign from the obligations and duties
hereby imposed on it, upon 30 days notice to the Trustee and the Paying Agent,
provided that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by such Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least $15,000,000
and (iii) Rating Agency Confirmation is obtained with respect to such
resignation, as evidenced by a letter from each Rating Agency delivered to the
Trustee. Any costs of such resignation and of obtaining a replacement Special
Servicer shall be borne by the applicable Special Servicer and shall not be an
expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the applicable Special Servicer hereunder in form and
substance reasonably satisfactory to the Trustee.
(d) Upon any resignation or termination of a Special Servicer, such
Special Servicer shall retain the right to receive any and all Work-Out Fees
payable in respect of (i) Mortgage Loans (and the Serviced Companion Loans, as
applicable) for which it acted as Special Servicer that became Rehabilitated
Mortgage Loans during the period that it acted as Special Servicer and that were
still Rehabilitated Mortgage Loans at the time of such resignation or
termination or (ii) any Specially Serviced Mortgage Loan for which such Special
Servicer has cured the event of default under such Specially Serviced Mortgage
Loan through a modification, restructuring or workout negotiated by such Special
Servicer and evidenced by a signed writing, but which had not as of the time
such Special Servicer was terminated, become a Rehabilitated Mortgage Loan
solely because it had not been a performing loan for 90 consecutive days and
which subsequently becomes a Rehabilitated Mortgage Loan as a result of the loan
being a performing loan for such 90 consecutive day period (and the successor
Special Servicer shall not be entitled to any portion of such Work-Out Fees), in
each case until such time (if any) as such Mortgage Loan (or the Serviced
Companion Loans) again becomes a Specially Serviced Mortgage Loan or are no
longer included in the Trust or if the related Mortgaged Property becomes an REO
Property.
Section 9.22 Assignment or Delegation of Duties by a Special
Servicer
A Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by such Special Servicer hereunder
or (B) assign and delegate all of its duties hereunder to a single Person. In
the case of any such assignment and delegation in accordance with the
requirements of clause (A) of this Section, such Special Servicer shall not be
released from its obligations under this Agreement. In the case of any such
assignment and delegation in accordance with the requirements of clause (B) of
this Section, such Special Servicer shall be released from its obligations under
this Agreement, except that such Special Servicer shall remain liable for all
liabilities and obligations incurred by it as a Special Servicer hereunder prior
to the satisfaction of the following conditions: (i) such Special Servicer gives
the Depositor, the applicable Master Servicer, the Operating Adviser and the
Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Special Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld.
Notwithstanding the above, a Special Servicer may appoint Sub-Servicers in
accordance with Section 9.39 hereof.
Section 9.23 Limitation on Liability of the Special Servicers and
Others
(a) Neither the Special Servicers nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Special Servicers shall be under any liability to the
Certificateholders, the holders of the Serviced Companion Loans 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 Servicers
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. Each
Special Servicer and any partner, representative, Affiliate, member, manager,
director, officer, employee or agent of a 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 applicable Master Servicer or any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of the applicable Master Servicer) respecting any matters arising hereunder.
Each 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 a 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 holders of the Serviced Companion Loans
and the Trustee in the Specially Serviced Mortgage Loans. In such event, all
legal expenses and costs of such action (other than those that are connected
with the routine performance by the applicable Special Servicer of its duties
hereunder) shall be expenses and costs of the Trust, and the applicable Special
Servicer shall be entitled to be reimbursed therefor as provided by Section 5.2
hereof. Notwithstanding any term in this Agreement, a Special Servicer shall not
be relieved from the requirement that it act in accordance with the Servicing
Standard by virtue of taking any action at the direction of the Operating
Adviser and shall not be relieved from liability otherwise imposed on such
Special Servicer pursuant to Section 6.3 of this Agreement.
(b) In addition, each Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Special Servicer and conforming to the requirements
of this Agreement. Neither of the Special Servicers, nor any partner,
representative, Affiliate, member, manager, director, officer, employee or
agent, shall be personally liable for any error of judgment made in good faith
by any officer, unless it shall be proved that the applicable Special Servicer
or such officer was negligent in ascertaining the pertinent facts. Neither of
the Special Servicers, nor any partner, representative, Affiliate, member,
manager, director, officer, employee or agent, shall be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement. Each Special Servicer shall be entitled to rely on reports and
information supplied to it by the applicable Master Servicer and the related
Mortgagors and shall have no duty to investigate or confirm the accuracy of any
such report or information.
(c) Each Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the applicable Master Servicer or the Trustee in this Agreement. The
Trust shall indemnify and hold harmless each 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) each 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) each 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) each 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) each Special Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in paper or
electronic format) reasonably believed or in good faith believed by it to
be genuine.
(e) Each Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of such Special
Servicer shall be indemnified by the applicable Master Servicer, the Trustee and
the Paying Agent, as the case may be, and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to the applicable Master
Servicer's, the Trustee's or the Paying Agent's, as the case may be, respective
willful misfeasance, bad faith or negligence in the performance of its
respective duties hereunder or by reason of negligent disregard by such Person
of its respective duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of such Special Servicer's duties hereunder or by reason of
negligent disregard of such Special Servicer's obligations and duties hereunder.
The applicable Special Servicer shall promptly notify the applicable Master
Servicer, the Trustee and the Paying Agent, if a claim is made by a third party
entitling such Special Servicer to indemnification hereunder, whereupon the
applicable Master Servicer, the Trustee or the Paying Agent, in each case, to
the extent the claim was made in connection with its willful misfeasance, bad
faith or negligence, shall assume the defense of any such claim (with counsel
reasonably satisfactory to such Special Servicer). Any failure to so notify the
applicable Master Servicer, the Trustee or the Paying Agent, shall not affect
any rights the applicable Special Servicer may have to indemnification hereunder
or otherwise, unless the interest of the applicable Master Servicer, the Trustee
or the Paying Agent is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the applicable Special Servicer. Such indemnity
shall survive the termination of this Agreement or the resignation or removal of
the applicable Special Servicer hereunder. Any payment hereunder made by the
applicable Master Servicer, the Trustee or the Paying Agent, as the case may be,
pursuant to this paragraph to the applicable Special Servicer shall be paid from
the applicable Master Servicer's, the Trustee's or the Paying Agent's, as the
case may be, own funds, without reimbursement from the Trust therefor, except
achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee, the Paying Agent or
the applicable Master Servicer shall be reimbursed by the party so paid if a
court of competent jurisdiction makes a final judgment that the conduct of the
Trustee, the Paying Agent or the applicable Master Servicer, as the case may be,
was not culpable of willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or of negligent disregard of its
respective duties hereunder or the indemnified party is found to have acted with
willful misfeasance, bad faith or negligence.
Section 9.24 Indemnification; Third-Party Claims
(a) Each Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of such Special
Servicer shall be indemnified by the Trust, and held harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to (i) this Agreement, any
Mortgage Loan, any REO Property or the Certificates or any exercise of any right
under this Agreement, and (ii) any action taken by such Special Servicer in
accordance with the instruction delivered in writing to such Special Servicer by
the Trustee or the applicable Master Servicer pursuant to any provision of this
Agreement, and such Special Servicer and each of its partners, representatives,
Affiliates, members, managers, directors, officers, employees or agents shall in
each case be entitled to indemnification from the Trust for any loss, liability
or expense (including attorneys' fees) incurred in connection with the provision
by such Special Servicer of any information included by such Special Servicer in
the report required to be provided by such Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. Such Special Servicer shall assume the defense of any such claim
(with counsel reasonably satisfactory to such Special Servicer) and the Trust
shall pay, from amounts on deposit in the applicable Certificate Account
pursuant to Section 5.2, all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the applicable Special Servicer. Any expenses
incurred or indemnification payments made by the Trust shall be reimbursed by
the applicable Special Servicer, if a court of competent jurisdiction makes a
final, non-appealable judgment that such Special Servicer was found to have
acted with willful misfeasance, bad faith or negligence. Notwithstanding the
foregoing, if such loss, liability or expense relates specifically to a Serviced
Companion Loan, then such indemnification shall be paid out of collections on,
and other proceeds of, such Serviced Companion Loan.
(b) Each Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of the Trustee, the Depositor and the
applicable Master Servicer, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that the Trust or the
Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may
sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of such Special Servicer's duties hereunder or by
reason of negligent disregard of such Special Servicer's obligations and duties
hereunder by such Special Servicer. The Trustee, the Depositor, the Paying Agent
or the applicable Master Servicer shall immediately notify the applicable
Special Servicer if a claim is made by a third party with respect to this
Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the
Trustee, the Depositor, the Paying Agent or the applicable Master Servicer, as
the case may be, to indemnification hereunder, whereupon such Special Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Depositor, the Paying Agent or the applicable Master
Servicer, as the case may be) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the applicable Special Servicer shall not affect any rights
the Trust or the Trustee, the Depositor, the Paying Agent or the applicable
Master Servicer may have to indemnification under this Agreement or otherwise,
unless such 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 applicable Special
Servicer, the Paying Agent or the Trustee. Any expenses incurred or
indemnification payments made by the applicable Special Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of such Special Servicer was not
culpable of willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or of negligent disregard of its respective
duties hereunder or the indemnified party is found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial General Special Servicer and the Depositor expressly
agree that the only information furnished by or on behalf of the General Special
Servicer for inclusion in the Preliminary Prospectus Supplement and the Final
Prospectus Supplement is the information set forth in the paragraphs under the
caption "TRANSACTION PARTIES--The Special Servicers--Centerline Servicing Inc.,"
with respect to the General Special Servicer, of the Preliminary Prospectus
Supplement and Final Prospectus Supplement. The initial Co-op Special Servicer
and the Depositor expressly agree that the only information furnished by or on
behalf of the Co-op Special Servicer for inclusion in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement is the information set forth in
the paragraphs under the caption "TRANSACTION PARTIES--The Special
Servicers--National Consumer Cooperative Bank," with respect to the Co-op
Special Servicer, of the Preliminary Prospectus Supplement and Final Prospectus
Supplement.
(d) Each of the Other Special Servicers and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of such Other Special Servicer shall be indemnified by the Trust and held
harmless against (i) the Trust's pro rata share of any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to the related Other Pooling and Servicing Agreement and
this Agreement, and relating to a Non Trust-Serviced Pari Passu Loan (but
excluding any such losses allocable to the related Non Trust Serviced Companion
Loan), reasonably requiring the use of counsel or the incurring of expenses
other than any losses incurred by reason of such Other Special Servicer's
willful misfeasance, bad faith or negligence in the performance of its duties
under the related Other Pooling and Servicing Agreement and (ii) any claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses relating to a Non
Trust-Serviced Pari Passu Loan, but only to the extent that such losses arise
out of the actions of the applicable Master Servicer, the applicable Special
Servicer or the Trustee, and only to the extent that such actions are in
violation of such party's duties under the provisions of the this Agreement and
to the extent that such actions are the result of such party's negligence, bad
faith or willful misconduct.
Section 9.25 [Reserved]
Section 9.26 Special Servicers May Own Certificates
Each Special Servicer or any agent of a Special Servicer in its
individual capacity or in any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if they were not a Special
Servicer or such agent. Any such interest of a Special Servicer or such agent in
the Certificates shall not be taken into account when evaluating whether actions
of such Special Servicer are consistent with its obligations in accordance with
the Servicing Standard regardless of whether such actions may have the effect of
benefiting the Class or Classes of Certificates owned by such Special Servicer.
Section 9.27 Tax Reporting
The applicable Special Servicer shall notify applicable Master
Servicer of (i) any abandoned Mortgaged Property, (ii) any foreclosure upon a
Mortgaged Property or (iii) any indebtedness that is forgiven, which require
reporting to the IRS. The applicable Special Servicer shall provide the
necessary information to the applicable Master Servicer to allow such 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. The applicable Special Servicer shall provide to the
applicable Master Servicer copies of any such reports. The applicable 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 Servicers will be collecting all
payments with respect to the Mortgage Loans and the Serviced Companion Loans
(other than payments with respect to REO Income). If, however, a Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income), it shall, within two Business Days of receipt from the
Mortgagor or otherwise of any amounts attributable to payments with respect to
or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any
(but not including REO Income, which shall be deposited in the applicable REO
Account as provided in Section 9.14 hereof), forward such payment (endorsed, if
applicable, to the order of the applicable Master Servicer) to the applicable
Master Servicer. The applicable Special Servicer shall notify the applicable
Master Servicer of each such amount received on or before the date required for
the making of such deposit or transfer, as the case may be, indicating the
Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be
applied and the type of payment made by or on behalf of the related Mortgagor.
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions
Each Special Servicer shall act in accordance with this Agreement,
the REMIC Provisions and the Grantor Trust Provisions and related provisions of
the Code in order to create or maintain the status of the Class EI Grantor Trust
and each Floating Rate Grantor Trust as a grantor trust and of any REMIC Pool as
a REMIC under the Code or, as appropriate, cooperate with the Paying Agent to
adopt a plan of complete liquidation. Each Special Servicer shall not take any
action or (A) cause any REMIC Pool to take any action that would (i) endanger
the status of any REMIC Pool as a REMIC or the status of the Class EI Grantor
Trust or either Floating Rate Grantor Trust as a grantor trust or (ii) subject
to Section 9.14(f), result in the imposition of a tax upon any REMIC Pool
(including, but not limited to, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code or on prohibited contributions pursuant to
Section 860G(d) of the Code) or (B) cause the Class EI Grantor Trust or either
Floating Rate Grantor Trust to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon the
Class EI Grantor Trust or either Floating Rate Grantor Trust unless the Master
Servicers, the Trustee and the Paying Agent 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. Each Special Servicer shall comply with the provisions
of Article XII hereof.
Section 9.30 Termination
(a) The obligations and responsibilities of each Special Servicer
created hereby (other than the obligation of the applicable Special Servicer to
make payments to the applicable Master Servicer as set forth in Section 9.28 and
the obligations of the Special Servicers pursuant to Sections 9.8 and 9.24
hereof) shall terminate on the date which is the earliest of (i) the later of
(A) the final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to Special Servicers that this Agreement is terminated pursuant to Section
9.30(b) or 9.30(c), respectively; and (iii) the effective date of any
resignation of such Special Servicer effected pursuant to and in accordance with
Section 9.21 or delegation of such Special Servicer's duties pursuant to clause
B of Section 9.22 (but only to the extent specifically set forth in Section
9.22).
(b) The Trustee may terminate (or, with respect to clause (xi)
below, at the direction of the Depositor, shall terminate) a Special Servicer in
the event that:
(i) such Special Servicer has failed to remit any amount required to
be remitted to the Trustee, the applicable Master Servicer, the Paying
Agent or the Depositor within one Business Day following the date such
amount was required to have been remitted under the terms of this
Agreement;
(ii) such Special Servicer has failed to deposit into any account
any amount required to be so deposited or remitted under the terms of this
Agreement which failure continues unremedied for one Business Day
following the date on which such deposit or remittance was first required
to be made;
(iii) such Special Servicer has failed to duly observe or perform in
any material respect any of the other covenants or agreements of such
Special Servicer set forth in this Agreement (other than, subject to
Section 13.14(c), the covenants or agreements set forth in Article XIII,
for so long as the Trust is subject to the reporting requirements of the
Exchange Act), and such Special Servicer has failed to remedy such failure
within thirty (30) days after written notice of such failure, requiring
the same to be remedied, shall have been given to such Special Servicer by
the Depositor or the Trustee, provided, however, that if such Special
Servicer certifies to the Trustee and the Depositor that such Special
Servicer is in good faith attempting to remedy such failure, and the
Certificateholders would not be affected thereby, such cure period will be
extended to the extent necessary to permit such Special Servicer to cure
such failure; provided, however, that such cure period may not exceed 90
days;
(iv) such Special Servicer has made one or more false or misleading
representations or warranties herein that materially and adversely affects
the interest of any Class of Certificates and has failed to cure such
breach within thirty (30) days after notice of such breach, requiring the
same to be remedied, shall have been given to such Special Servicer by the
Depositor or the Trustee, provided, however, that if such Special Servicer
certifies to the Trustee and the Depositor that such Special Servicer is
in good faith attempting to remedy such failure, such cure period may be
extended to the extent necessary to permit such Special Servicer to cure
such failure; provided, however, that such cure period may not exceed 90
days;
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
such Special Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days;
(vi) such Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to such Special Servicer or of
or relating to all or substantially all of its property;
(vii) such Special Servicer thereof shall admit in writing its
inability to pay its debts generally as they become due, file a petition
to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing;
(viii) such Special Servicer ceases to have the Special Servicer
rating of at least "CSS3" from Fitch, or the Trustee receives written
notice from Fitch that the continuation of such Special Servicer in such
capacity would result in the downgrade, qualification or withdrawal of the
then current rating then assigned by Fitch to any class of certificates
and citing servicing concerns with such Special Servicer as the sole or a
material factor in such rating action, and such notice is not rescinded
within 60 days;
(ix) such Special Servicer is no longer listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Special Servicer and is not
reinstated to such status within 60 days;
(x) the Trustee receives written notice from DBRS that the
continuation of such Special Servicer in such capacity would result in the
downgrade, qualification or withdrawal of the then current rating then
assigned by DBRS to any class of certificates and citing servicing
concerns with such Special Servicer as the sole or a material factor in
such rating action, and such notice is not rescinded within 60 days; or
(xi) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, such Special Servicer, or any
Sub-Servicer or Additional Servicer appointed by such Special Servicer
(other than a Seller Sub-Servicer), shall fail to deliver any Exchange Act
reporting items required to be delivered by such servicer under Article
XIII of this Agreement at the times required under such Article. Such
termination shall be effective on the date after the date of any of the
above events that the Trustee specifies in a written notice to such
Special Servicer specifying the reason for such termination. The Operating
Adviser shall have the right to appoint a successor if the Trustee
terminates such Special Servicer. Termination of one Special Servicer
shall not terminate the other Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate a Special Servicer, with or without cause, provided that the
Operating Adviser shall appoint a successor Special Servicer (to perform the
duties designated to that applicable Special Servicer) who will execute and
deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, whereby the successor Special Servicer agrees to
assume and perform punctually the duties of such terminated Special Servicer
specified in this Agreement; and provided, further, that the Trustee shall have
received Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interest in a Serviced Companion Loan) from
each Rating Agency prior to the termination of the applicable Special Servicer.
A Special Servicer shall not be terminated pursuant to this subsection (c) until
a successor Special Servicer shall have been appointed. The Operating Adviser
shall pay any costs and expenses incurred by the Trust in connection with the
removal and appointment of a Special Servicer (unless such removal is based on
any of the events or circumstances set forth in Section 9.30(b)). The Special
Servicer being terminated shall execute and deliver such document acknowledging
its termination as may be reasonably required by any Rating Agency.
(d) Any costs and expenses associated with the transfer of the
special servicing function (other than with respect to a termination without
cause) under Section 9.30(b) shall be borne by the predecessor Special Servicer
and shall be paid within 30 days of request therefor, otherwise, if such Special
Servicer is terminated without cause, such costs and expenses shall be payable
from the Trust, if the terminating party is the Trustee or the Depositor, or the
Operating Adviser, if the Operating Adviser is the terminating party.
Section 9.31 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i)(B) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the applicable Special Servicer to the
Trustee and the Paying Agent no later than the later of (i) five Business Days
after the liquidation of the last REO Property or (ii) the sixth day of the
month in which the final Distribution Date will occur. Upon any such
termination, the rights and duties of the applicable Special Servicer (other
than the rights and duties of such Special Servicer pursuant to Sections 9.8,
9.21, 9.23 and 9.24 hereof) shall terminate and such Special Servicer shall
transfer to the applicable Master Servicer the amounts remaining in each REO
Account and shall thereafter terminate each REO Account and any other account or
fund maintained with respect to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given
to a Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of such Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided that in no event shall the termination of such Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded such Special Servicer as successor Special Servicer, notified such
Special Servicer of such designation, and such successor Special Servicer shall
have assumed such Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed a Special Servicer as Special Servicer until and unless
it has satisfied the provisions that would apply to a Person succeeding to the
business of such Special Servicer pursuant to Section 9.20 hereof. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
applicable 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. Each Special Servicer agrees to cooperate with the Trustee in
effecting the termination of such Special Servicer's responsibilities and rights
hereunder as Special Servicer including, without limitation, providing the
Trustee all documents and records in electronic or other form reasonably
requested by it to enable the successor Special Servicer designated by the
Trustee to assume such Special Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by such Special Servicer in the
applicable REO Account and any other account or fund maintained or thereafter
received with respect to the Specially Serviced Mortgage Loans.
(c) Upon any resignation of a Special Servicer pursuant to Section
9.21 or termination of a Special Servicer pursuant to Section 9.30 or
appointment of a successor to a Special Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, to the holders of each Serviced Companion
Loan and to each Rating Agency.
Within 30 days after the occurrence of any Event of Default with
respect to a Special Servicer of which a Responsible Officer of the Trustee has
actual knowledge, the Trustee shall transmit by mail to all Certificateholders,
the holders of each Serviced Companion Loan and each Rating Agency notice of
such Event of Default, unless such Event of Default shall have been cured or
waived.
Section 9.32 Certain Special Servicer Reports
(a) The applicable Special Servicer, for each Specially Serviced
Mortgage Loan, shall provide to the applicable Master Servicer by 2:00 p.m. (New
York time) on the date that is one Business Day after the Determination Date for
each month, the CMSA Special Servicer Loan File in such electronic format as is
mutually acceptable to each applicable Master Servicer and the applicable
Special Servicer and in CMSA format. The applicable Master Servicer may use such
reports or information contained therein to prepare its reports and such Master
Servicer may, at its option, forward such reports directly to the Depositor and
the Rating Agencies.
(b) The applicable 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 applicable
Master Servicer no later than the tenth Business Day following such Final
Recovery Determination.
(c) The applicable Special Servicer shall provide to the applicable
Master Servicer or the Paying Agent at the reasonable request in writing of such
Master Servicer or the Paying Agent, any information in its possession with
respect to the Specially Serviced Mortgage Loans which the applicable Master
Servicer or Paying Agent, as the case may be, shall require in order for the
applicable Master Servicer or the Paying Agent to comply with its obligations
under this Agreement; provided that such Special Servicer shall not be required
to take any action or provide any information that such Special Servicer
determines will result in any material cost or expense to which it is not
entitled to reimbursement hereunder or will result in any material liability for
which it is not indemnified hereunder. The applicable Master Servicer shall
provide the applicable Special Servicer at the reasonable request of such
Special Servicer any information in its possession with respect to the Mortgage
Loans which such Special Servicer shall require in order for such Special
Servicer to comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the applicable Special Servicer shall forward to the applicable Master
Servicer a statement setting forth the status of each REO Account as of the
close of business on such Special Servicer Remittance Date, stating that all
remittances required to be made by it as required by this Agreement to be made
by such Special Servicer have been made (or, if any required distribution has
not been made by such Special Servicer, specifying the nature and status
thereof) and showing, for the period from the day following the preceding
Special Servicer Remittance Date to such Special Servicer Remittance Date, the
aggregate of deposits into and withdrawals from each REO Account for each
category of deposit specified in Section 5.1 of this Agreement and each category
of withdrawal specified in Section 5.2 of this Agreement.
(e) With respect to Specially Serviced Mortgage Loans, the
applicable Special Servicer shall use reasonable efforts to obtain and, to the
extent obtained, to deliver electronically to the Master Servicers (subject to
Section 8.14 herein), the Paying Agent, the Rating Agencies and the Operating
Adviser, on or before April 15 of each year, commencing with April 15, 2008, (i)
copies of the prior year operating statements and, except with respect to the
Co-op Mortgage Loans, quarterly statements, if available, for each Mortgaged
Property underlying a Specially Serviced Mortgage Loan or REO Property as of its
fiscal year end, provided that either the related Mortgage Note or Mortgage
requires the Mortgagor to provide such information, or if the related Mortgage
Loan has become an REO Property, (ii) a copy of the most recent rent roll with
respect to Mortgage Loans other than Co-op Mortgage Loans, available for each
Mortgaged Property, and (iii) a table, setting forth the Debt Service Coverage
Ratio and occupancy with respect to each Mortgaged Property covered by the
operating statements delivered above.
(f) The applicable Special Servicer shall deliver to the applicable
Master Servicer, the Depositor, the Paying Agent and the Trustee all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as the applicable Master Servicers, the Trustee, the Paying
Agent or the Depositor may from time to time reasonably request; provided,
however, that such 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 such Special Servicer.
(g) The applicable Special Servicer shall deliver electronically a
written Inspection Report of each Specially Serviced Mortgage Loan in accordance
with Section 9.4(b) to the Operating Adviser.
(h) Notwithstanding anything to the contrary herein, as a condition
to a Special Servicer making any report or information available upon request to
any Person other than the parties hereto or any Operating Adviser, such Special
Servicer may require that the recipient of such information acknowledge that
such Special Servicer may contemporaneously provide such information to the
Depositor, the Trustee, the Paying Agent, the Master Servicers, the Primary
Servicer, the Sellers, the Placement Agent, any Underwriter, any Rating Agency,
and/or the Certificateholders, Certificate Owners or the holders of each
Serviced Companion Loan, as applicable. Any transmittal of information by a
Special Servicer to any Person other than the Trustee, the Paying Agent, the
Master Servicers, any Primary Servicer, any Other Master Servicer, the Rating
Agencies, the Operating Adviser or the Depositor may be accompanied by a letter
from such Special Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any Person who possesses material, non-public information
regarding the Trust which issued Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 from
purchasing or selling such Certificates in circumstances where the
other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is
being provided to you for the purpose of, and such information may
be used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
Section 9.33 Special Servicers to Cooperate with the Master
Servicers, the Paying Agent and the Trustee
The applicable Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
applicable Master Servicer, the Trustee, the Paying Agent or any Primary
Servicer to enable it to perform its duties under this Agreement or any Primary
Servicing Agreement, as applicable; provided that no such request shall (i)
require or cause such Special Servicer to violate the Code, any provision of
this Agreement, including such Special Servicer's obligation to act in
accordance with the servicing standards set forth in this Agreement and to
maintain the REMIC status of any REMIC Pool or (ii) expose such Special
Servicer, the Trust, the Paying Agent or the Trustee to liability or materially
expand the scope of such Special Servicer's responsibilities under this
Agreement. In addition, the applicable Special Servicer shall notify the
applicable Master Servicer of all expenditures incurred by it with respect to
the Specially Serviced Mortgage Loans which are required to be made by the
applicable Master Servicers as Servicing Advances as provided herein, subject to
the provisions of Section 4.4 hereof. The applicable Special Servicer shall also
remit all invoices relating to Servicing Advances promptly upon receipt of such
invoices.
Section 9.34 [Reserved]
Section 9.35 [Reserved]
Section 9.36 Sale of Defaulted Mortgage Loans
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class and the applicable Special Servicer (each in
such capacity, together with any assignee, the "Option Holder") shall, in that
order, have the right, at its option (the "Option"), to purchase a Mortgage Loan
(other than a Non-Trust Serviced Pari Passu Loan) from the Trust at a price
equal to the Option Purchase Price upon receipt of notice from the applicable
Special Servicer that such Mortgage Loan has become at least 60 days delinquent
as to any monthly debt service payment (or is 90 days delinquent as to its
Balloon Payment). The Option is exercisable, subject to the related Seller's
right (after receiving notice from the Trustee that an Option Holder intends to
exercise its Option) set forth in Section 2.3 to first repurchase such Mortgage
Loan, from that date until terminated pursuant to clause (e) below, and during
that period the Option shall be exercisable in any month only during the period
from the 10th calendar day of such month through the 25th calendar day,
inclusive, of such month. The Trustee on behalf of the Trust shall be obligated
to sell such Mortgage Loan upon the exercise of the Option (whether exercised by
the original holder thereof or by a holder that acquired such Option by
assignment), but shall have no authority to sell such Mortgage Loan other than
in connection with the exercise of an Option (or in connection with a repurchase
of a Mortgage Loan under Article II, an optional termination pursuant to Section
10.1 or a qualified liquidation of the REMIC Pools). Any Option Holder that
exercises the Option shall be required to purchase the applicable Mortgage Loan
within 4 Business Days following such exercise. If any Option Holder desires to
waive its right to exercise the Option, then it shall so notify the Trustee in
writing, and the Trustee shall promptly notify the next party eligible to hold
the Option set forth above of its rights hereunder. Any of the other parties
eligible to hold the Option set forth above may at any time notify the Trustee
in writing of its desire to exercise the Option, and the Trustee shall promptly
notify the current Option Holder (and the other parties eligible to hold the
Option) of such party's desire to exercise the Option. If the Option Holder
neither (i) exercises the Option nor (ii) surrenders its right to exercise the
Option within 3 Business Days of its receipt of that notice, then the Option
Holder's right to exercise the Option shall lapse, and the Trustee shall
promptly notify the next party eligible to hold the Option (and the other
parties eligible to hold the Option) of its rights thereunder.
(b) The "Option Purchase Price" shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the applicable Special
Servicer upon the request of any holder of the Option. The reasonable,
out-of-pocket expenses of the applicable Special Servicer incurred in connection
with any such determination of the fair value of a Mortgage Loan shall be
payable and reimbursed to such Special Servicer as an expense of the Trust.
Prior to the applicable Special Servicer's determination of fair value referred
to above, the fair value of a Mortgage Loan shall be deemed to be an amount
equal to the Purchase Price plus (i) any prepayment penalty or yield maintenance
charge then payable upon the prepayment of such Mortgage Loan and (ii) the
reasonable fees and expenses of the applicable Special Servicer, the applicable
Master Servicer and the Trustee incurred in connection with the sale of the
Mortgage Loan. The applicable Special Servicer shall determine the fair value of
a Mortgage Loan on the later of (A) as soon as reasonably practical upon the
Mortgage Loan becoming 60 days delinquent or upon the Balloon Payment becoming
delinquent and (B) the date that is 75 days after such Special Servicer's
receipt of the Servicer Mortgage File relating to such Mortgage Loan, and the
applicable Special Servicer shall promptly notify the Option Holder (and the
Trustee and each of the other parties set forth above that could become the
Option Holder) of the Option Purchase Price. The applicable Special Servicer is
required to recalculate the fair value of the Mortgage Loan if there has been a
material change in circumstances or such Special Servicer has received new
information, including the receipt of a third party bid to purchase the Option,
which has a material effect on the fair value, provided that such Special
Servicer shall be required to recalculate the fair value of the Mortgage Loan if
the time between the date of last determination of the fair value of the
Mortgage Loan and the date of the exercise of the Option has exceeded 60 days.
Upon any recalculation, the applicable Special Servicer shall be required to
promptly notify in writing each Option Holder (and the Trustee and each of the
other parties set forth above that could become the Option Holder) of the
revised Option Purchase Price. Any such recalculation of the fair value of the
Mortgage Loan shall be deemed to renew the Option in its original priority at
the recalculated price with respect to any party as to which the Option had
previously expired or been waived, unless the Option has previously been
exercised by an Option Holder at a higher Option Purchase Price. In determining
fair value, the applicable Special Servicer shall take into account, among other
factors, the results of any Appraisal or updated Appraisal that it or the
applicable Master Servicer may have obtained in accordance with this Agreement
within the prior twelve months; any views on fair value expressed by Independent
investors in mortgage loans comparable to the Mortgage Loan (provided that the
applicable Special Servicer shall not be obligated to solicit such views); the
period and amount of any delinquency on the affected Mortgage Loan; whether to
the applicable Special Servicer's actual knowledge, the Mortgage Loan is in
default to avoid a prepayment restriction; the physical condition of the related
Mortgaged Property; the state of the local economy; the expected recoveries from
the Mortgage Loan if the applicable Special Servicer were to pursue a workout or
foreclosure strategy instead of the Option being exercised; and the Trust's
obligation to dispose of any REO Property as soon as practicable consistent with
the objective of maximizing proceeds for all Certificateholders, but in no event
later than the three-year period (or such extended period) specified in Section
9.15.
With respect to any related Pari Passu Loan, the applicable Special
Servicer shall calculate the option purchase price (in a manner similar to that
by which the Option Purchase Price with respect to the related Mortgage Loan is
calculated) and shall notify the holder of such Pari Passu Loan of such price.
Notwithstanding the foregoing, the Option will not apply to a Non-Trust Serviced
Pari Passu Loan.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party by the Option Holder at its discretion at any time after its receipt
of notice from the applicable Special Servicer that an Option is exercisable
with respect to a specified Mortgage Loan, and upon such assignment such third
party shall have all of the rights granted to the Option Holder hereunder in
respect of the Option. Such assignment shall only be effective upon written
notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the applicable Master Servicer and
the applicable Special Servicer, and none of such parties shall be obligated to
recognize any entity as an Option Holder absent such notice.
(d) If the applicable Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the applicable Special Servicer to make
such a determination, the Trustee will do so within a reasonable period of time
(but in no event more than 15 Business Days). In doing so, the Trustee may rely
on the opinion of an Appraiser or other expert in real estate matters retained
by the Trustee at the expense of the party exercising the Option. The Trustee
may also rely on the most recent Appraisal of the related Mortgaged Property
that was prepared in accordance with this Agreement. If the Trustee were to
determine that the Option Purchase Price does not constitute a fair price, then
the applicable Special Servicer shall redetermine the fair value taking into
account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a work-out arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
(f) Unless and until an Option Holder exercises an Option, the
applicable Special Servicer shall continue to service and administer the related
Mortgage Loan (and the related Serviced Companion Loan, as applicable) in
accordance with the Servicing Standard and this Agreement, and shall pursue such
other resolution or recovery strategies, including workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
Section 9.37 Operating Adviser; Elections
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser with respect to Specially
Serviced Mortgage Loans (the "Operating Adviser"). The Operating Adviser shall
be elected for the purpose of receiving reports and information from the Special
Servicers in respect of the Specially Serviced Mortgage Loans (including any
reports and information received by the applicable Special Servicer from the
related Other Special Servicer with respect to a Non Trust-Serviced Pari Passu
Loan).
(b) The initial Operating Adviser is Centerline REIT Inc., a
Delaware corporation. The Controlling Class shall give written notice to the
Trustee, the Paying Agent and the applicable Master Servicer of the appointment
of any subsequent Operating Adviser (in order to receive notices hereunder). If
a subsequent Operating Adviser is not so appointed, an election of an Operating
Adviser also shall be held. Notice of the meeting of the Holders of the
Controlling Class shall be mailed or delivered to each Holder by the 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 not
be required to recognize any Person as an Operating Adviser until the Operating
Adviser provides the Paying Agent with written confirmation of its acceptance of
such appointment, written confirmation that it will keep confidential all
information received by it as Operating Adviser hereunder or otherwise with
respect to the Certificates, the Trust and/or this Agreement, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
The Paying Agent hereby recognizes Centerline REIT Inc. as the initial Operating
Adviser. The Paying Agent shall promptly notify the Trustee of the identity of
the Operating Adviser. The Trustee shall promptly deliver such information to
the Master Servicers and the Special Servicers. The Master Servicers and the
Special Servicers shall not be required to recognize any Person as an Operating
Adviser until such information has been delivered by the Trustee. In the event
that an Operating Adviser shall have resigned or been removed and a successor
Operating Adviser shall not have been elected, there shall be no Operating
Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that a Special Servicer
has been elected as Operating Adviser or no Operating Adviser has been elected,
(i) such Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than such 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, such
Special Servicer.
(g) With respect to a Serviced Loan Group, the Operating Adviser
appointed by the Certificateholders pursuant to Section 9.37(c) hereof shall be
entitled to receive copies of all notices or information sent to the related
Directing Holder hereunder, with respect to such Serviced Loan Group.
(h) The applicable Master Servicer or the applicable Special
Servicer, as the case may be, shall not be required to recognize any Person as
the holder of a Serviced Companion Loan until such holder provides such Master
Servicer or Special Servicer, as the case may be, with an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers). The
applicable Master Servicer or the applicable Special Servicer, as the case may
be, shall promptly notify the Operating Adviser of such information with respect
to any such holder of a Serviced Companion Loan.
Section 9.38 Limitation on Liability of Operating Adviser
The Operating Adviser shall have no liability to the Trust, the
Depositor, the Master Servicers, the Special Servicers, the Trustee, the Paying
Agent, the holders of each Serviced Companion Loan 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. Furthermore,
the Operating Adviser shall have no rights with respect to any Non
Trust-Serviced Pari Passu Loan or any Non Trust Serviced Companion Loan. The
Operating Adviser shall have no liability to the trust formed pursuant to any
Other Pooling and Servicing Agreement, the holder of any Non Trust Serviced
Companion Loan or the certificateholders under any Other Pooling and Servicing
Agreement for any action taken, or for refraining from the taking of any action,
in good faith and using reasonable business judgment pursuant to this Agreement.
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 the holders of each Serviced Companion Loan, 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 Rights of Operating Adviser
(a) With respect to each Mortgage Loan (other than a Non-Trust
Serviced Pari Passu Loan) (or Serviced Loan Group, as applicable),
notwithstanding anything to the contrary herein (and, with respect to each
Serviced Loan Group, subject to Section 9.40 and the related Co-Lender
Agreement), including but not limited to Article 8 hereof, the Operating Adviser
may advise the applicable Special Servicer with respect to the following actions
of such Special Servicer and such Special Servicer will not be permitted to take
any of the following actions with respect to any Mortgage Loan (other than a
Non-Trust Serviced Pari Passu Loan) unless and until it has notified the
Operating Adviser in writing and such Operating Adviser has not objected in
writing (i) within 5 Business Days of having been notified thereof in respect of
actions relating to non-Specially Serviced Mortgage Loans (which 5 Business Day
period shall run concurrently with the time periods set forth in the Primary
Servicing Agreement with respect to such actions) and (ii) within 10 Business
Days of having been notified thereof in respect of actions relating to Specially
Serviced Mortgage Loans and having been provided with all reasonably requested
information with respect thereto (it being understood and agreed that if such
written objection has not been received by such Special Servicer within such 5
Business Day or 10 Business Day period, as applicable, then the Operating
Adviser's approval will be deemed to have been given):
(i) any modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term of a Mortgage Loan
other than an extension of the original maturity date for 2 years or less;
(ii) with respect to notice only, any proposed sale of a Defaulted
Mortgage Loan, pursuant to Section 9.36;
(iii) any determination to bring an REO Property into compliance
with Environmental Laws;
(iv) any acceptance of substitute or additional collateral for a
Mortgage Loan not expressly required under such Mortgage Loan (except with
respect to a Defeasance Loan);
(v) any acceptance of a discounted payoff;
(vi) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause (other than with respect to a Co-op Mortgage
Loan as to which the NCB, FSB Subordinate Debt Conditions have been
satisfied);
(vii) any acceptance of an assumption agreement;
(viii) any release of collateral for a Specially Serviced Mortgage
Loan (other than in accordance with the terms of or upon satisfaction of
such Mortgage Loan); and
(ix) any franchise changes or certain management company changes for
which such Special Servicer is required to consent.
(b) In addition, notwithstanding anything to the contrary herein,
including but not limited to Article 8 hereof, with respect to each Mortgage
Loan (or Serviced Loan Group, as applicable), the Operating Adviser shall have
the right to approve any of the following actions by the applicable Special
Servicer:
(i) any actual or proposed foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any acceptance of a discounted payoff; and
(iii) any release of "earn out" or performance reserves listed on
Schedule XI hereof, on deposit in an Escrow Account, other than where such
release does not require the consent of the lender or is required under
applicable law.
In the event that a Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders and/or
the holders of each Serviced Companion Loan, as the case may be, such Special
Servicer may take any such action without waiting for the Operating Adviser's
advice or approval. No advice or approval or lack of approval of the Operating
Adviser may (and the applicable Special Servicer shall ignore and act without
regard to any such advice or approval or lack of approval that such Special
Servicer has determined, in its reasonable, good faith judgment, would) (A)
require or cause the applicable Special Servicer to violate applicable law, the
terms of any Mortgage Loan or Serviced Companion Loan or any other Section of
this Agreement, including such Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in Adverse REMIC Event with
respect to any REMIC Pool, (C) endanger the status of the Class EI Grantor Trust
or either Floating Rate Grantor Trust as a grantor trust, (D) expose the Trust,
the Depositor, a Master Servicer, a Special Servicer, the Trustee, the Paying
Agent or any of their respective Affiliates, members, managers, partners,
representatives, officers, directors, employees or agents, to any material
claim, suit or liability, or (E) expand the scope of a Master Servicer's or a
Special Servicer's responsibilities under this Agreement.
Any notices required to be delivered to a Special Servicer with
respect to items (i) through (vii) of subsection (a) above and items (i) through
(iii) of subsection (b) above by any other party to this Agreement shall be
simultaneously delivered to the Operating Adviser (including, to the extent
received from a party to the related Other Pooling and Servicing Agreement, such
information with respect to a Non-Trust Serviced Pari Passu Loan). With respect
to items (v), (vi) and (vii) of subsection (a) above, the Operating Adviser
shall be subject to the same time periods for advising such Special Servicer
with respect to any such matters as are afforded to such Special Servicer
pursuant to Section 8.7, which periods shall be co-terminus with those of such
Special Servicer. The applicable Special Servicer shall provide the Operating
Adviser with its recommendations with respect to the matters set forth in both
(a) and (b) above within 5 Business Days of such Special Servicer's receipt of
notice thereof. In addition, the Operating Adviser may direct the Trustee to
remove a Special Servicer at any time upon the appointment and acceptance of
such appointment by a successor to such Special Servicer; provided that, prior
to the effectiveness of any such appointment, the Trustee and the Paying Agent
shall have received Rating Agency Confirmation from each Rating Agency. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)). The Trustee shall notify the Paying Agent promptly upon its receipt of
the direction set forth above. Notwithstanding any other provision in this
Agreement, the Operating Adviser shall have the right to appoint a sub-operating
adviser with respect to any particular Mortgage Loan (other than a Non-Trust
Serviced Pari Passu Loan) (or, with respect to the Senior Mortgage Loans, the
related Serviced Loan Group). Such sub-operating adviser shall have the right,
subject to Rating Agency Confirmation, to appoint, or serve as, the applicable
Special Servicer with respect to such Mortgage Loan. All references in this
Agreement to the "Operating Adviser" and the "Special Servicer" shall refer to
the sub-operating adviser or the special servicer appointed by the sub-operating
adviser, as applicable; provided, however, that the applicable Special Servicer
shall not have any advancing obligations with respect to such Mortgage Loans (or
a Serviced Loan Group, as applicable).
Notwithstanding anything to the contrary in this Section 9.39, with
respect to the each Serviced Loan Group, the Directing Holder under the related
Co-Lender Agreement shall have the rights set forth in this section otherwise
afforded to the Operating Adviser for so long as a related Serviced Companion
Loan is the applicable Directing Holder. With respect to each Serviced Loan
Group, the Operating Adviser shall have the right to consult with the applicable
Special Servicer, on a non-binding basis, regarding the matters set forth in
subsections (a) and (b) of this Section 9.39 in accordance with the terms and
conditions set forth in the related Co-Lender Agreement.
With respect to a Non-Trust Serviced Pari Passu Loan, the Operating
Advisor may exercise the consultation right of the holder of such Non-Trust
Serviced Pari Passu Loan in accordance with the related Other Pooling and
Servicing Agreement and the related Co-Lender Agreement.
Section 9.40 Rights of the Holders of the Serviced Companion Loans
(a) Pursuant to the related Co-Lender Agreement, but subject to the
immediately succeeding paragraph, with respect to a Serviced Loan Group, upon
notice to the applicable Master Servicer, the applicable Special Servicer, the
Paying Agent and the Trustee, each Directing Holder may direct (or consult with
or advise) the applicable Master Servicer or the applicable Special Servicer, as
applicable, to take, or to refrain from taking, such actions with respect to the
related Senior Mortgage Loan and/or the related Mortgaged Property as such
Directing Holder may deem consistent with the related Co-Lender Agreement or as
to which provision is otherwise made therein. The applicable Master Servicer or
the applicable Special Servicer, as applicable, shall provide each Directing
Holder, upon reasonable request, with any information in the applicable Master
Servicer's or the applicable Special Servicer's, as applicable, possession with
respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
Notwithstanding the foregoing, neither the applicable Master
Servicer nor the applicable Special Servicer, as applicable, shall be required
to take any action or refrain from taking any action that would (and the
applicable Master Servicer and the applicable Special Servicer may ignore and
act without regard to any advice, direction or objection of the holder of the
applicable Serviced Companion Loan that the applicable Master Servicer or the
applicable Special Servicer has determined, in its reasonable, good faith
judgment would) require or cause the applicable Master Servicer or the
applicable Special Servicer to violate any provision of this Agreement, the
related Co-Lender Agreement or the related loan documents, including the
obligation to act in accordance with the Servicing Standard and the REMIC
Provisions.
The applicable Master Servicer and the Operating Adviser acknowledge
that, with respect to a Serviced Loan Group, pursuant to the related Co-Lender
Agreement, the Directing Holder shall be entitled to exercise the rights and
powers granted to the Operating Adviser herein with respect to the applicable
Senior Mortgage Loan and the applicable Serviced Companion Loan(s), as
applicable, and that all references in this Agreement to the term "Operating
Adviser" and to the Operating Adviser appointed pursuant to Section 9.37(a)
shall be deemed (solely with respect to the Serviced Loan Group) to refer to the
holder of the applicable Serviced Companion Loan. Notwithstanding the foregoing,
the Operating Adviser designated by the Certificateholders shall also receive
all notices and reports delivered to the Operating Adviser appointed pursuant to
the related Co-Lender Agreement.
(b) If the applicable Master Servicer becomes aware of any event of
default under the related loan documents that give rise to the right (if any) of
the holder of a Serviced Companion Loan to cure such default with respect to the
related Serviced Loan Group under the related Co-Lender Agreement, the
applicable Master Servicer shall promptly notify such holder in writing. For so
long as the conditions exist that allow the holder of the applicable Serviced
Companion Loan to cure such conditions, the holder of the applicable Serviced
Companion Loan may, at its option, indicate to the applicable Master Servicer or
the applicable Special Servicer, as applicable, in writing its intent to cure
such defaults under the applicable Serviced Loan Group in accordance with the
related Co-Lender Agreement, whereupon the holder of the applicable Serviced
Companion Loan or its designee shall have the right to cure such defaults in
accordance with such related Co-Lender Agreement. Any such cure will be subject
to all applicable provisions of the related Co-Lender Agreement. The applicable
Master Servicer, the applicable Special Servicer and Trustee shall reasonably
cooperate with the holder of the applicable Serviced Companion Loan in effecting
such cure.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans
(a) The obligations and responsibilities of the Trustee 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 REMIC Regular Certificateholders and the Floating Rate
Certificateholders, as set forth in Section 10.2 and other than the obligations
in the nature of information or tax reporting) shall terminate on the earliest
of (i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (including for
all purposes of this Article X, the beneficial interest of the Trust in a
Mortgaged Property acquired with respect to a Non-Trust Serviced Pari Passu
Loan) (and final distribution to the Certificateholders), (ii) the sale of the
property held by the Trust in accordance with Section 10.1(b), (iii) the
termination of the Trust pursuant to Section 10.1(c) or (iv) the transfer of the
property held in the Trust in accordance with Section 10.1(d); provided that in
no event shall the Trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof.
(b) The Capmark Master Servicer shall give the Trustee and the
Paying Agent notice of the date when the aggregate Principal Balance of the
Mortgage Loans, after giving effect to distributions of principal made on the
next Distribution Date, is less than or equal to 1% of the initial Aggregate
Certificate Balance of the Certificates as of the Closing Date. In order to make
such determination, the NCB Master Servicer shall inform the Capmark Master
Servicer (which may be through providing the Capmark Master Servicer access to
the NCB Master Servicer's website) of the Principal Balance of the Co-op
Mortgage Loans on a monthly basis, or at an accelerated interval as requested by
the Capmark Master Servicer of the NCB Master Servicer. In order to make such
determination, the Xxxxx Fargo Master Servicer shall inform the Capmark Master
Servicer (which may be through providing the Capmark Master Servicer access to
the Xxxxx Fargo Master Servicer's website) of the Principal Balance of the RBC
Loans and the Nationwide Loans on a monthly basis, or at an accelerated interval
as requested by the Capmark Master Servicer of the Xxxxx Fargo Master Servicer.
The Paying Agent shall promptly forward such notice to the Trustee, the
Depositor, the Holder of a majority of the Controlling Class, the Master
Servicers, the Special Servicers, NCB, FSB (if it is not then a Master Servicer)
and the Holders of the Class R-I Certificates; and the Holder of a majority of
the Controlling Class, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, the Co-op
Special Servicer and the Holders of the Class R-I Certificates, in such priority
(and in the case of the Class R-I Certificateholders, a majority of the Class
R-I Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust, provided, that if any Holder of
a majority of the Controlling Class, the Co-op Special Servicer, the General
Master Servicer, the NCB Master Servicer (if not then NCB, FSB), the General
Special Servicer or the Holders of the Class R-I Certificates makes such an
election, then NCB, FSB will have the option, by giving written notice to the
other parties hereto no later than 30 days prior to the anticipated date of
purchase, to purchase all of the NCB, FSB Loans and each related REO Property
remaining in the Trust, and the other party will then have the option to
purchase only the remaining Mortgage Loans and each related REO Property. If any
party desires to exercise such option, it will notify the Paying Agent who will
notify any party with a prior right to exercise such option and NCB, FSB (if it
is not then a Master Servicer). If any party that has been provided notice by
the Paying Agent (excluding the Depositor) notifies the Paying Agent 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 Paying Agent 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 Trustee shall promptly release or cause to be released to the
applicable Master Servicer for the benefit of the Holder of the majority of the
Class R-I Certificates, the General Special Servicer or the applicable Master
Servicer, as the case may be, the Mortgage Files pertaining to the Mortgage
Loans. The "Termination Price" shall equal 100% of the aggregate Principal
Balances of the Mortgage Loans (other than Mortgage Loans as to which a Final
Recovery Determination has been made) on the day of such purchase plus accrued
and unpaid interest thereon (other than any accrued and unpaid interest thereon
that has been the subject of an Advance) at the applicable Mortgage Rates (or
Mortgage Rates less the Master Servicing Fee Rate if a Master Servicer is the
purchaser), with respect to the Mortgage Loans to the Due Date for each Mortgage
Loan ending in the Collection Period with respect to which such purchase occurs,
plus unreimbursed Advances and interest on such unreimbursed Advances at the
Advance Rate, and the fair market value of any other property remaining in REMIC
I. The Trustee shall consult with the Placement Agent and the Underwriters or
their respective successors, as advisers, in order for the Trustee to determine
whether the fair market value of the property constituting the Trust has been
offered; provided that, if the Placement Agent or any Underwriter or an
Affiliate of the Placement Agent or the Underwriters is exercising its right to
purchase the Trust assets, the Trustee shall consult with the Operating Adviser
in order for the Trustee to determine the fair market value, provided that the
Operating Adviser is not an Affiliate of the Class R-I Holder, the General
Special Servicer or a Master Servicer, or the Trustee (the fees and expenses of
which shall be paid for by buyer of the property). As a condition to the
purchase of the Trust pursuant to this Section 10.1(b), the Holder of the
majority of the Class R-I Certificates, the General Special Servicer or the
Master Servicers, as the case may be, must deliver to the Trustee an Opinion of
Counsel, which shall be at the expense of such Holders, the General Special
Servicer or the Master Servicers, as the case may be, stating that such
termination will be a "qualified liquidation" under Section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own
100% of the REMIC Regular Certificates, the Floating Rate Certificates and the
Class EI Certificates, such Holders may terminate REMIC I (which will in turn
result in the termination of REMIC II and REMIC III), and the Class EI Grantor
Trust and the Floating Rate Grantor Trusts upon (i) the delivery to the Trustee
and the Depositor of an Opinion of Counsel (which opinion shall be at the
expense of such Holders) stating that such termination will be a "qualified
liquidation" of each REMIC Pool under Section 860F of the Code, and (ii) the
payment of any and all costs associated with such termination. Such termination
shall be made in accordance with Section 10.3.
(d) Following the date on which the aggregate Certificate Balance of
the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class
A-MFL, Class A-MA, Class A-J, Class A-JFL, Class A-JA, 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 exchange all
of its Certificates (other than the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust as contemplated by
clause (iv) of Section 10.1(a) by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange and upon
the delivery to the Trustee and the Depositor of an Opinion of Counsel (which
opinion shall be at the expense of such Sole Certificateholders) stating that
such exchange will be a "qualified liquidation" of each REMIC Pool under Section
860F of the Code. In the event that the Sole Certificateholder elects to
exchange all of its Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Capmark
Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the
Special Servicers, the Trustee and the Paying Agent hereunder through the date
of the liquidation of the Trust that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto or
that may be withdrawn from the Distribution Accounts pursuant to this Agreement
but only to the extent that such amounts are not already on deposit in the
Certificate Account. Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Residual
Certificates) on such Distribution Date, the Custodian shall, upon receipt of a
Request for Release from the applicable Master Servicer, release or cause to be
released to the Sole Certificateholder or any designee thereof, the Custodian
Mortgage Files for the remaining Mortgage Loans and the Trustee shall execute
all assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust, and the Trust shall be
liquidated in accordance with Section 10.2. For federal income tax purposes, the
Sole Certificateholder shall be deemed to have purchased the assets of REMIC I,
the Class EI Grantor Trust and the Floating Rate Grantor Trusts, to the extent
then outstanding, for an amount equal to the remaining Certificate Balance of
its Certificates (other than the Residual Certificates), plus accrued, unpaid
interest with respect thereto, and the Paying Agent shall credit such amounts
against amounts distributed in respect of such Certificates. The remaining
Mortgage Loans and REO Properties are deemed distributed to the Sole
Certificateholder in liquidation of the Trust pursuant to Section 10.2.
(e) Upon the termination of the Trust, (i) any Excess Interest held
by the Class EI Grantor Trust shall be distributed to the Class EI
Certificateholders, on a pro rata basis and (ii) any funds or other property
held by each Floating Rate Grantor Trust shall be distributed to the related
Class of Floating Rate Certificateholders on a pro rata basis.
(f) Subject to Section 1.6 and Section 9.4(e), upon the sale of the
Mortgage Loan that is part of a Serviced Loan Group by the Trust or the payment
in full of the related Mortgage Loan, such related Mortgage Loan and the related
Serviced Companion Loan shall no longer be subject to this Agreement and the
obligations and rights of the applicable Master Servicer and the applicable
Special Servicer, with respect to such applicable Serviced Loan Group shall
terminate in the manner and subject to the applicable provisions, set forth in
Section 8.28 and Section 9.30, respectively.
Section 10.2 Procedure Upon Termination of Trust
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Paying Agent by first class mail to the
Trustee, the Rating Agencies, the Swap Counterparty, the Class R-I, Class R-II,
Class R-III, REMIC Regular, Floating Rate and Class EI Certificateholders mailed
no later than ten days prior to the date of such termination. Such notice shall
specify (A) the Distribution Date upon which final distribution on the Class
R-I, Class R-II, Class R-III, REMIC Regular, Floating Rate and Class EI
Certificates will be made, and upon presentation and surrender of the Class R-I,
Class R-II, Class R-III, REMIC Regular, Floating Rate and Class EI Certificates
at the office or agency of the Certificate Registrar therein specified, and (B)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender of the
Class R-I, Class R-II, Class R-III, REMIC Regular, Floating Rate and Class EI
Certificates at the office or agency of the Certificate Registrar therein
specified. The Paying Agent shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II, Class R-III, REMIC Regular, Floating Rate and Class EI
Certificates. Upon any such termination, the duties of the Certificate Registrar
with respect to the Class R-I, Class R-II, Class R-III, REMIC Regular, Floating
Rate and Class EI Certificates shall terminate and the Trustee shall terminate,
or request the Master Servicers to terminate, the Certificate Accounts and the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Paying Agent's obligation hereunder to hold all
amounts payable to the Class R-I, Class R-II, Class R-III, REMIC Regular,
Floating Rate and Class EI Certificateholders in trust without interest pending
such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I, Class R-II, Class R-III, REMIC Regular,
Floating Rate and Class EI Certificates for cancellation within three months
after the time specified in the above-mentioned written notice, the Certificate
Registrar shall give a second written notice to the remaining Class R-I, Class
R-II, Class R-III, REMIC Regular, Floating Rate and Class EI Certificateholders
to surrender their certificates evidencing the Class R-I, Class R-II, Class
R-III, REMIC Regular and Class EI Certificates for cancellation and receive the
final distribution with respect thereto. If within one year after the second
notice any Class R-I, Class R-II, Class R-III, REMIC Regular, Floating Rate and
Class EI Certificates shall not have been surrendered for cancellation, the
Certificate Registrar may take appropriate steps to contact the remaining Class
R-I, Class R-II, Class R-III, REMIC Regular, Floating Rate and Class EI
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class R-I, Class R-II, Class
R-III, REMIC Regular, Floating Rate and Class EI 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 Paying Agent and not distributed to a Class R-I, Class R-II, Class
R-III, REMIC Regular, Floating Rate or Class EI Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the 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, the Floating Rate
Grantor Trusts and the Class EI Grantor Trust and shall be beneficially owned by
the related Holder.
Section 10.3 Additional REMIC Termination Requirements
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of a Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Paying Agent subsequently receives an Opinion of Counsel (at the
expense of such Master Servicer or the Class R-I Certificateholders, as the case
may be), addressed to the Depositor, 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 Class R-I, Class R-II, Class R-III and REMIC Regular
Certificates and the Floating Rate Regular Interests, the Paying Agent
shall prepare and (on behalf of REMIC I, REMIC II and REMIC III) shall
adopt a plan of complete liquidation of each REMIC Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which
plan need not be in any special form and the date of which, in general,
shall be the date of the notice specified in Section 10.2(a) and shall be
specified in a statement attached to the final federal income tax return
of each REMIC Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on
the Class R-I, Class R-II, Class R-III and REMIC Regular Certificates and
the Floating Rate Regular Interests, the Trustee shall sell all of the
assets of each REMIC Pool for cash at the Termination Price; provided that
if the Holders of the Class R-I Certificates are purchasing the assets of
the Trust, the amount to be paid by such Holders may be paid net of the
amount to be paid to such Holders as final distributions on any
Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the 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
remaining assets of REMIC II after such final payment of the REMIC II
Regular Interests and (C) to the Holders of the Class R-III Certificates
all remaining assets of REMIC III after such final payment on the REMIC
Regular Certificates and Floating Rate Regular Interests (in each case
other than cash retained to meet claims), and the Trust shall terminate at
that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests, REMIC Regular Certificates or
Floating Rate Regular Interests or the final distribution or credit to the
Holders of the Residual Certificates, respectively, be made after the 89th
day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Paying
Agent to take such action as may be necessary to adopt a plan of complete
liquidation of each REMIC Pool and (ii) agree to take such other action as may
be necessary to adopt a plan of complete liquidation of the Trust upon the
written request of the Depositor, which authorization shall be binding upon all
successor Class R-I, Class R-II and Class R-III Certificateholders,
respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the REMIC
Regular Certificateholders, Floating Rate Certificateholders and Residual
Certificateholders to the extent appropriate.
Section 11.1 Limitation on Rights of Holders
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicers
or operation and management of the Trust, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) If a Certificateholder is also a Mortgagor with respect to any
Mortgage Loan, such Certificateholder shall have no right to vote with respect
to any matters concerning such Mortgage Loan. In addition, if a
Certificateholder is also a Special Servicer, such Certificateholder shall have
no right to vote, in its capacity as a Certificateholder, with respect to
compensation to such Special Servicer or any waiver of a default with respect to
a Mortgage Loan.
(d) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.2 Access to List of Holders
(a) If the 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 15 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, a Special Servicer, a
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the 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
Servicers, the Special Servicers and the Trustee that neither the Depositor, the
Certificate Registrar, the Paying Agent, the Master Servicers, the Special
Servicers nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 11.3 Acts of Holders of Certificates
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor 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.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool,
each Floating Rate Grantor Trust and the Class EI Grantor Trust, as applicable.
Section 12.1 REMIC Administration
(a) An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the Mortgage Loans (other than Excess
Interest payable thereon), such amounts with respect thereto as shall from time
to time be held in the Certificate Accounts, the Interest Reserve Account, the
Distribution Account and the Reserve Account, the Insurance Policies and any
related amounts REO Account and any related REO Properties as a REMIC ("REMIC
I") under the Code, other than any portion of the foregoing allocable to a
Serviced Companion Loan. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC I Interests are issued. For purposes of such election, the REMIC I Regular
Interests shall each be designated as a separate class of "regular interests" in
REMIC I and the Class R-I Certificates shall be designated as the sole class of
"residual interests" in REMIC I.
An election will be made by the 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 Regular Certificates and the Floating Rate Regular Interests are issued.
For purposes of such election, the Class A-1, Class A-1A, Class A-2, Class A-3,
Class A-4, Class A-M, Class A-MA, Class A-J, Class A-JA, 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 X-1 and Class X-2 Certificates and
the Class A-MFL and Class A-JFL Regular Interests shall be designated as the
"regular interests" in REMIC III and the Class R-III Certificates shall be
designated as the sole class of "residual interests" in REMIC III.
The Trustee and the Paying Agent shall not permit the creation of
any "interests" (within the meaning of Section 860G of the Code) in any of the
REMIC Pools other than the REMIC I Regular Interests, the REMIC II Regular
Interests, the REMIC Regular Certificates, the Floating Rate Regular Interests
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, the Class
EI Grantor Trust and each Floating Rate Grantor Trust an application for a
taxpayer identification number for such REMIC Pool or grantor trust 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, the Trustee and the
Master Servicers. 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
Paying Agent 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 Servicers and the Special Servicers 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 a Master Servicer
and a Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and Special Servicer hereunder and reasonably
requested by the 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 or any liability or
assessment against any of them or cost or expense (including attorneys' fees)
incurred by them resulting from any error resulting from bad faith, negligence,
or willful malfeasance of the Depositor in providing any information for which
the Depositor is responsible for preparing. Each Master Servicer and each
Special Servicer shall indemnify the Trustee, the Paying Agent, and the
Depositor for any liability or assessment against the Trustee, the Depositor,
the Paying Agent or any REMIC Pool and any expenses incurred in connection with
such liability or assessment (including attorneys' fees) resulting from any
error in any of such tax or information returns resulting from errors in the
information provided by such Master Servicer or such Special Servicer, as the
case may be, which errors were caused by the negligence, willful misconduct or
bad faith of such Master Servicer or such Special Servicer, as the case may be.
The Paying Agent shall indemnify the Master Servicers, the Special Servicers,
the Trustee, the Depositor or any REMIC Pool for any expense incurred by any
Master Servicer, any Special Servicer, the Trustee, 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 a Master Servicer, the Paying Agent, the Trustee
or a 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 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 Servicers and the Special Servicers shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, the Paying Agent, the Master Servicers and the Special Servicers,
within the scope of its express duties, and shall each act in accordance with
this Agreement and the REMIC Provisions in order to create and maintain the
status of each REMIC Pool as a REMIC and the Class EI Grantor Trust and each
Floating Rate 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 Servicers, the Special
Servicers, and the Holders of Residual Certificates shall not take any action or
fail to take any action or cause any REMIC Pool to take any action or fail to
take any action if any of such Persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of any REMIC Pool as
a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool (including
but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2)) of the Code or (iii) endanger the status of the Class EI Grantor
Trust or either Floating Rate 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, the Paying Agent or the Holders of the Residual Certificates to
undertake such action.
(k) In the event that any tax is imposed on the REMIC I, REMIC II or
REMIC III, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to the REMIC I, REMIC II or REMIC III after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by a 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, which breach constitutes
negligence, willful misconduct or bad faith; (ii) a Special Servicer, if such
tax arises out of or results from a breach by such Special Servicer of any of
its obligations under this Agreement, which breach constitutes negligence,
willful misconduct or bad faith; (iii) a Master Servicer, if such tax arises out
of or results from a breach by such Master Servicer of any of its obligations
under this Agreement, which breach constitutes negligence, willful misconduct or
bad faith; and (iv) the Trust in all other instances. Any tax permitted to be
incurred by a Special Servicer 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 records are maintained
by the Master Servicers or the Special Servicers in the normal course of their
businesses, the Master Servicers and the Special Servicers shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis, and with respect to the Class EI
Grantor Trust and the Floating Rate Grantor Trusts on the cash or accrual method
and so as to enable reporting to Holders of the Class EI Certificates and the
related Floating Rate Certificates, respectively, based on their annual
accounting period. Notwithstanding anything to the contrary contained herein,
except to the extent provided otherwise in the Mortgage Loans or in the
Mortgages, all amounts collected on the Mortgage Loans shall, for federal income
tax purposes, be allocated first to interest due and payable on the Mortgage
Loans (including interest on overdue interest, other than additional interest at
a penalty rate payable following a default). The books and records must be
sufficient concerning the nature and amount of each REMIC Pool's investments to
show that such REMIC Pool has complied with the REMIC Provisions.
(m) None of the Trustee, the Paying Agent, the Master Servicers or
the Special Servicers shall enter into any arrangement by which any REMIC Pool
will receive a fee or other compensation for services.
(n) In order to enable the 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 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, the projected cash flows of the
Mortgage Loans and the allocation of the issue price of a Class of Floating Rate
Certificates between the related Class of Floating Rate Regular Interest and the
related Swap Transaction. Thereafter, the Depositor shall provide to the Paying
Agent or its designee, promptly upon request therefor, any such additional
information or data within the Depositor's possession or knowledge that the
Paying Agent may, from time to time, reasonably request in order to enable the
Paying Agent to perform its duties as set forth herein. The Paying Agent is
hereby directed to use any and all such information or data provided by the
Depositor in the preparation of all federal and state income or franchise tax
and information returns and reports for each REMIC Pool to Certificateholders as
required herein. The Depositor hereby indemnifies the Trustee, the Paying Agent
and each REMIC Pool for any losses, liabilities, damages, claims, expenses
(including attorneys' fees) or assessments against the Trustee, the Paying Agent
and each REMIC Pool arising from any errors or miscalculations of the Paying
Agent pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the methodology employed by the Paying Agent) on a
timely basis and such indemnification shall survive the termination of this
Agreement and the termination or resignation of the Paying Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its reasonable best efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to 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, each Master
Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
REMIC Pool as "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class of REMIC
I Regular Interests, each Class of REMIC II Regular Interests, each Class of
Floating Rate Regular Interests and each Class of REMIC Regular Certificates is
the Final Rated Distribution Date.
Section 12.2 Prohibited Transactions and Activities
Neither the Trustee, the Paying Agent, the Master Servicers nor the
Special Servicers shall permit the sale, disposition or substitution of any of
the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or
default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool,
(iii) the termination of any REMIC Pool in a "qualified liquidation" as defined
in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II
hereof), nor acquire any assets for the Trust, except as provided in Article II
hereof, nor sell or dispose of any investments in the Certificate Accounts or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the regular interests therein, (B)
affect the distribution of interest or principal on the Certificates, (C) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (D) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans
Notwithstanding anything to the contrary in this Agreement, neither
the Trustee, the Paying Agent, the applicable Master Servicer nor the applicable
Special Servicer shall permit (or in the case of the Trustee, consent to) any
modification of a Money Term of a Mortgage Loan that is not in default or as to
which default is not reasonably foreseeable unless (i) the Trustee, the
applicable Special Servicer, Paying Agent and the applicable Master Servicer
have received a Nondisqualification Opinion or a ruling from the Internal
Revenue Service (at the expense of the party making the request that the
applicable Master Servicer or the applicable Special Servicer modify the
Mortgage Loan or a Specially Serviced Mortgage Loan) to the effect that such
modification would not be treated as an exchange pursuant to Section 1001 of the
Code (or, if it would be so treated, would not be treated as a "significant
modification" for purposes of Treasury Regulations Section 1.860G-2(b) of the
Code) or (ii) such modification meets the requirements set forth in Section 8.18
or Section 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 Servicers, the
Special Servicers, 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 Servicers, the Special Servicers, 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 Grantor Trust Administration
The assets of the Class EI Grantor Trust, consisting of the right to
any Excess Interest in respect of the ARD Loans and the related amounts in the
Excess Interest Sub-account, shall be held by the Trustee for the benefit of the
Holders of the Class EI Certificates, which Class EI Certificates will evidence
100% beneficial ownership of the related assets from and after the Closing Date.
It is intended that the portions of the Trust consisting of the Class EI Grantor
Trust will be treated as a grantor trust for federal income tax purposes, within
the meaning of subpart E, part I of subchapter J of the Code, and each of the
parties to this Agreement agrees that it will not take any action that is
inconsistent with establishing or maintaining such treatment. In addition, the
Class A-MFL and Class A-JFL Certificates are hereby designated as undivided
beneficial interests in the related Class of Floating Rate Regular Interest, the
related Swap Transaction and the proceeds thereof in the related Floating Rate
Account, and it is intended that each such portion of the Trust Fund will be
treated as a separate grantor trust for Federal income tax purposes within the
meaning of subpart E, part I of Subchapter J of the Code, and each of the
parties to this Agreement agrees that it will not take any action that is
inconsistent with establishing or maintaining such treatment. Under no
circumstances may the Trustee or the Paying Agent vary the assets of the Class
EI Grantor Trust or either Floating Rate Grantor Trust so as to take advantage
of variations in the market so as to improve the rate of return of Holders of
the Class EI Certificates or the related Class of Floating Rate Certificates, as
the case may be. The Trustee and the Paying Agent shall be deemed to hold and
shall account for each of the Class EI Grantor Trust and the Floating Rate
Grantor Trusts separate and apart from the assets of the REMIC I, REMIC II and
REMIC III created hereunder. In furtherance of such intention, the Paying Agent
shall furnish or cause to be furnished to the Class EI and Floating Rate
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 (or, if the WHFIT Regulations are
applicable, Form 1099) or such other form as may be applicable, information
returns with respect to income relating to their shares of the income and
expenses of the Class EI Grantor Trust or the related Floating Rate Grantor
Trust, as applicable, at the time or times and in the manner required by the
Code.
The Class EI Grantor Trust shall not be treated as a WHFIT unless
and until the beneficial owner of a Class EI Certificate notifies the Paying
Agent that such Class EI Certificate is held through a "middleman," within the
meaning of the WHFIT Regulations. The Floating Rate Grantor Trusts are WHFITs
that are NMWHFITs. The Paying Agent will report as required under the WHFIT
Regulations to the extent such information as is reasonably necessary to enable
the Paying Agent to do so (and not otherwise in its possession) is provided to
the Paying Agent on a timely basis. The Paying Agent will not be liable for any
tax reporting penalties that may arise under the WHFIT Regulations as a result
of a determination that the status described in the first two sentences of this
paragraph is incorrect. "WHFIT" shall mean a "Widely Held Fixed Investment
Trust" as that term is defined in Treasury Regulations Section 1.671-5(b)(22) or
successor provisions. "NMWHFIT" shall mean a "Non-Mortgage Widely Held Fixed
Investment Trust" as that term is defined in Treasury Regulations Section
1.671-5(b)(23) or successor provisions. "WHFIT Regulations" shall mean Treasury
Regulations Section 1.671-5, as amended.
The Paying Agent, in its discretion, will report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Paying Agent will
be under no obligation to determine whether any Certificateholder uses the cash
or accrual method. The Paying Agent will make available WHFIT information to
Certificateholders annually. In addition, the Paying Agent will not be
responsible or liable for providing subsequently amended, revised or updated
information to any Certificateholder, unless requested by the certificate
holder.
The Paying Agent shall not be liable for failure to meet the
reporting requirements of the WHFIT Regulations nor for any penalties thereunder
if such failure is due to: (i) the lack of reasonably necessary information
being provided to the Paying Agent (and not otherwise in its possession), or
(ii) incomplete, inaccurate or untimely information being provided to the Paying
Agent. Each owner of a class of securities representing, in whole or in part,
beneficial ownership of an interest in a WHFIT, by acceptance of its interest in
such class of securities, will be deemed to have agreed to provide the Paying
Agent with information regarding any sale of such securities, including the
price, amount of proceeds and date of sale. Absent receipt of such information,
and unless informed otherwise by the Depositor, the Paying Agent will assume
there is no secondary market trading of WHFIT interests.
To the extent required by the WHFIT Regulations, the Paying Agent
will use reasonable efforts to publish on an appropriate website the CUSIPs for
the certificates that represent ownership of a WHFIT. The CUSIPs so published
will represent the Rule 144A CUSIPs. The Paying Agent will not publish any
associated Reg S CUSIPs. The Paying Agent will make reasonable good faith
efforts to keep the website accurate and updated to the extent CUSIPs have been
received. Absent the receipt of a CUSIP, the Paying Agent will use a reasonable
identifier number in lieu of a CUSIP. The Paying Agent will not be liable for
investor reporting delays that result from the receipt of inaccurate or untimely
CUSIP information.
The Paying Agent shall be entitled to additional reasonable
compensation for changes in reporting required in respect of the WHFIT
Regulations that arise as a result of a change in the WHFIT Regulations or a
change in interpretation of the WHFIT Regulations by the IRS or the Depositor or
its counsel, if such change requires, in the Paying Agent's reasonable
discretion, a material increase in the Paying Agent's reporting obligations in
respect of the Class EI Grantor Trust.
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 their rights to
request delivery of information or other performance under these provisions
other than reasonably and in good faith, or (except with respect to Section
13.9, Section 13.10 or Section 13.11) for purposes other than compliance with
the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case,
the rules and regulations of the Commission thereunder. The parties hereto
acknowledge that interpretations of the requirements of Regulation AB may change
over time, whether due to interpretive guidance provided by the Commission or
its staff, or otherwise, and agree to comply with requests made by the Depositor
or the Paying Agent in good faith for delivery of information under these
provisions on the basis of evolving interpretations of the requirements of
Regulation AB. In connection with the Subject Securitization Transaction, each
of the Master Servicers, the Special Servicers, any Primary Servicer and the
Trustee 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
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 Servicers, the Special Servicers, any Primary Servicer,
the Trustee and the Paying Agent, as applicable, and any Reporting Sub-Servicer,
or the Servicing of the Mortgage Loans, reasonably believed by the Depositor or
the Paying Agent, as applicable, in good faith, to be necessary in order to
effect such compliance. Each party to this Agreement shall have a reasonable
period of time to comply with any written request made under this Section 13.1,
but in any event, shall, upon reasonable advance written request, provide such
information in sufficient time to allow the Depositor or the Paying Agent, as
applicable, to satisfy any related filing requirements.
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee
(a) For as long as the Trust is subject to the reporting
requirements of the Exchange Act, in connection with the succession to any
Reporting Servicer, any Additional Servicer or any Reporting Sub-Servicer as
servicer, trustee or paying agent under this Agreement by any Person (i) into
which such Reporting Servicer, any Additional Servicer or any Reporting
Sub-Servicer, as the case may be, may be merged or consolidated, or (ii) which
may be appointed as a successor (or in the case of the Trustee, successor
Trustee, co-Trustee or Separate Trustee) to any Reporting Servicer, any
Additional Servicer or any Reporting Sub-Servicer, as the case may be, such
Reporting Servicer, any Additional Servicer or any Reporting Sub-Servicer, as
the case may be, shall (and each Reporting Servicer, as applicable, shall (a)
use reasonable efforts to cause each Additional Servicer and each Reporting
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Additional Servicer and each Reporting
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to) provide to the Depositor, at least 5 calendar days prior to
the effective date of such succession or appointment, as long as such disclosure
prior to such effective date would not be violative of any applicable law or
confidentiality agreement, otherwise no later than the effective date of such
succession or appointment, (x) written notice to the Depositor and the Paying
Agent of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor and the Paying Agent, 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.
(b) If any Serviced Companion Loan is deposited into an Other
Securitization, the Reporting Servicers responsible for performing servicing
functions with respect to the related Senior Mortgage Loan, will take all
actions reasonably requested of them to enable such Other Securitization to
comply with Regulation AB. Without limiting the foregoing, such Reporting
Servicers will, if reasonably requested by the depositor for such Other
Securitization, provide disclosure (in substantially the same form as the
disclosure provided in the prospectus supplement for the Subject Securitization
Transaction, to the extent necessary to comply with Regulation AB) regarding the
applicable Reporting Servicer, 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 the Subject Securitization Transaction regarding damages
incurred in connection with the non-compliance with the requirements of
Regulation AB relating to the disclosure referred to in the immediately
preceding sentence. For the avoidance of doubt, for so long as any Other
Securitization is subject to the reporting requirements of the Exchange Act, the
obligations set forth in this Section 13.2(b) shall apply even if the Trust is
no longer subject to the reporting requirements of the Exchange Act.
Section 13.3 Filing Obligations
The Reporting Servicers shall (and shall (a) use reasonable efforts
to cause each Additional Servicer and each Reporting Sub-Servicer (other than
any party to this Agreement) with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
and (b) cause each Additional Servicer and each Reporting Sub-Servicer (other
than any party to this Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to)
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act.
Section 13.4 Form 10-D Filings
Within 15 calendar days after each Distribution Date (the "10-D
Filing Deadline") (subject to permitted extensions under the Exchange Act), the
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
immediately succeeding paragraph, be reported by the parties set forth on
Schedule XVII and directed to the Depositor and the Paying Agent for approval by
the Depositor. The Paying Agent will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure (other
than such Additional Form 10-D Disclosure which is to be reported by it as set
forth on Schedule XVII) absent such reporting, direction and approval.
For so long as the Trust (or any Other Securitization) is subject to
the reporting requirements of the Exchange Act, as set forth on Schedule XVII
hereto, within 5 calendar days after the related Distribution Date, each Person
identified on Schedule XVII shall be required to provide to the Depositor and
the Paying Agent (or, as to each such Person responsible for the performance of
servicing functions with respect to a Serviced Companion Loan that has been
deposited into an Other Securitization, the depositor and the trustee in such
Other Securitization), in a form readily convertible to an XXXXX-compatible form
(to the extent available to such party in such format), or in such other form as
otherwise agreed by the Depositor, the Paying Agent and such party, to the
extent a Servicing Officer or Responsible Officer, as the case may be, thereof
has actual knowledge (other than with respect to disclosure required pursuant to
Item 1117 of Regulation AB as to such party which shall be reported if actually
known by any Servicing Officer or Responsible Officer, as the case may be, or
any lawyer in the in-house legal department of such party), the form and
substance of the corresponding Additional Form 10-D Disclosure as set forth on
Schedule XVII, together with an Additional Disclosure Notification in the form
attached hereto as Exhibit AA. The Paying Agent shall provide prompt notice to
the Depositor (or, with respect to a Serviced Companion Loan if 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 XVII of their duties under this paragraph or proactively solicit or
procure from any such parties any Additional Form 10-D Disclosure information.
Unless otherwise directed by the Depositor, and subject to any comments received
to such disclosure from the Depositor by the 2nd calendar day after such 5th
calendar day after the related Distribution Date, the 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. For
the avoidance of doubt, the applicable Master Servicer shall be required to
report to the Depositor, the Paying Agent and the Trustee the net operating
income of a Significant Obligor to the extent and under the conditions such net
operating income is required to be reported under Regulation AB. Any notice
delivered to the Paying Agent pursuant to this paragraph shall be delivered by
facsimile to (000) 000-0000 and by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or such other address as may hereafter be furnished by the Paying Agent to the
other parties in writing.
On or prior to the 4th Business Day prior to the 15th calendar 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 2nd Business Day prior to the 15th calendar day after the
related Distribution Date, the Depositor) shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Paying Agent. The Paying Agent shall
(a) file such Form 10-D, upon signature thereof as provided in Section 13.14,
not later than 5:30 p.m. (New York City time) on the 15th calendar day after the
related Distribution Date or (b) use commercially reasonable best efforts to
file such Form 10-D, if the 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 make available on
its internet website a final executed copy of each Form 10-D. The parties to
this Agreement acknowledge (and each Additional Servicer and each Reporting
Sub-Servicer shall be required to acknowledge) that the performance by the
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 Reporting Sub-Servicer) 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.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the 5th calendar day after the related
Distribution Date during any year in which the Paying Agent is required to file
a Form 10-D if the answer to the questions should be "no." The Paying Agent
shall be entitled to rely on such representations in preparing, executing and/or
filing any Form 10-D.
Section 13.5 Form 10-K Filings
On or prior to 5:30 p.m. (New York City time) on the 90th day after
the end of each fiscal year of the Trust or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2008, the 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
pursuant to Item 1123 of Regulation AB, as described under Section 13.9;
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for each Reporting Servicer pursuant to Item 1122 of
Regulation AB, as described under Section 13.10, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria
described under Section 13.10 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any Reporting Servicer's report on assessment of compliance with
Servicing Criteria described under Section 13.10 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation as to why such report is not included,
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer pursuant to Item 1122 of Regulation AB, as
described under Section 13.11, and (B) if any registered public accounting
firm attestation report described under Section 13.11 identifies any
material instance of noncompliance, disclosure identifying such instance
of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation as to why
such report is not included, and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 13.6.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule XVIII and directed to the Depositor and the 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 XVIII) absent such reporting, direction
and approval.
For so long as the Trust (or any Other Securitization) is subject to
the reporting requirements of the Exchange Act, no later than March 15th (with
no grace period) of each year commencing in 2008, each party identified on
Schedule XVIII hereto shall be required to provide to the Depositor (or, with
respect to a Serviced Companion Loan if deposited into an Other Securitization,
the depositor and the trustee in such Other Securitization) and the Paying
Agent, to the extent a Servicing Officer or Responsible Officer, as the case may
be, of such party has actual knowledge (other than with respect to disclosure
required pursuant to Item 1117 or Item 1119 of Regulation AB as to such party
which shall be reported if actually known by any Servicing Officer or
Responsible Officer, as the case may be, or any lawyer in the in-house legal
department of such party), the form and substance of the corresponding
Additional Form 10-K Disclosure as set forth on Schedule XVIII, if applicable,
and in a form that is readily convertible to an XXXXX-compatible format (to the
extent available to such party in such format), or in such other form as
otherwise agreed by the Depositor, the Paying Agent and such Person together
with an Additional Disclosure Notification in the form attached hereto as
Exhibit AA. 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 XVIII of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. Unless otherwise directed by the Depositor, and subject
to any comments received to such disclosure from the Depositor by March 15th,
the Paying Agent shall include the form and substance of the Additional Form
10-K Disclosure on the related Form 10-K. The Depositor will be responsible for
any reasonable fees charged and out-of-pocket expenses incurred by the Paying
Agent in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph. Any notice delivered to the Paying Agent
pursuant to this paragraph shall be delivered by facsimile to (000) 000-0000 and
by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or such other address as may
hereafter be furnished by the Paying Agent to the other parties in writing.
On or prior to 5:00 p.m. (New York City time) on the 8th Business
Day prior to the 10-K Filing Deadline, 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 on behalf of the Depositor and return
an electronic or fax copy of such signed Form 10-K to the Paying Agent. 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 Xxxxxx
Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. The
parties to this Agreement acknowledge (and each Additional Servicer and each
Reporting Sub-Servicer shall be required to acknowledge) that the performance by
the 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 Reporting Sub-Servicer) 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.
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).
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the 15th calendar day of March in any year in
which the Trust is required to file a Form 10-K if the answer to the questions
should be "no." The Paying Agent shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-K.
Section 13.6 Xxxxxxxx-Xxxxx Certification
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit BB-1 attached hereto, required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Additional Servicer and each Reporting Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Reporting Sub-Servicer (other than any party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to, provide to the Person
who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March
15th (with no grace period) of each year subsequent to the fiscal year in which
the Trust is subject to the reporting requirements of the Exchange Act and
otherwise within a reasonable period of time upon request in connection with an
amendment of a previously filed Form 10-K, a certification (each, a "Performance
Certification"), in the form attached hereto as Xxxxxxxx XX-0, XX-0, XX-0, XX-0
and BB-6 upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, each a "Certification Party" and
collectively, "Certification Parties") can reasonably rely. The senior officer
in charge of securitization of the Depositor shall serve as the Certifying
Person on behalf of the Trust. Such officer of the Certifying Person can be
contacted at Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx and Xxxxxxxx
Xxxxx, Esq. If any Reporting Servicer is terminated or resigns pursuant to the
terms of this Agreement, or any applicable sub-servicing agreement or primary
servicing agreement, as the case may be, such Reporting Servicer shall provide a
Performance Certification and a reliance certificate to the Certifying Person
pursuant to this Section 13.6 with respect to the period of time it was subject
to this Agreement or the applicable sub-servicing or primary servicing
agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 13.9, if applicable, (ii)
annual report on assessment of compliance with Servicing Criteria provided
pursuant to Section 13.10 and (iii) registered public accounting firm
attestation report provided pursuant to Section 13.11 and shall include a
certification that each such annual report on assessment of compliance discloses
any material instances of noncompliance described to the registered public
accountants of such Reporting Servicer to enable such accountants to render the
attestation provided for in Section 13.11.
If a Serviced Companion Loan is deposited into an Other
Securitization, each Reporting Servicer providing servicing functions with
respect to such Serviced Companion Loan shall provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification with respect to such Other Securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to such Serviced Companion
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. For the avoidance of doubt, for so long as any Other
Securitization is subject to the reporting requirements of the Exchange Act, the
obligations set forth above shall apply even if the Trust is no longer subject
to the reporting requirements of the Exchange Act.
Notwithstanding the foregoing, without limiting the requirements of
the Exchange Act, nothing in this Section shall require any Reporting Servicer
(i) to certify or verify the accurateness or completeness of any information
provided to such Reporting Servicer by third parties (other than a Sub-Servicer
or Additional Servicer retained by it, except for Seller Sub-Servicers with
respect to the Master Servicers or Special Servicers, as applicable), (ii) to
certify information other than to such Reporting Servicer's knowledge and in
accordance with such Reporting Servicer's responsibilities hereunder or (iii)
with respect to completeness of information and reports, to certify anything
other than that all fields of information called for in written reports prepared
by such Reporting Servicer have been completed except as they have been left
blank on their face.
Section 13.7 Form 8-K Filings
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), the Paying Agent shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall, pursuant to the paragraph immediately below, be reported by
any party set forth on Schedule XIX 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 XIX) absent such reporting,
direction and approval.
For so long as the Trust (or any Other Securitization) is subject to
the reporting requirements of the Exchange Act, no later than noon on the 2nd
Business Day after the occurrence of the Reportable Event, the parties listed on
Schedule XIX hereto shall, to the extent a Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge, be required to
provide written notice to the Depositor (or, as to each such Person responsible
for the performance of servicing functions with respect to a Serviced Companion
Loan that has been deposited into an Other Securitization, the depositor and the
trustee in such Other Securitization) and the Paying Agent of such Reportable
Event in the form and substance of the corresponding Form 8-K Disclosure
Information, as set forth on Schedule XIX, if applicable, and in a form that is
readily convertible to an XXXXX-compatible 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 together with an Additional
Disclosure Notification in the form attached hereto as Exhibit AA. The Paying
Agent shall have no duty under this Agreement to monitor or enforce the
performance by the parties listed on Schedule XIX of their duties under this
paragraph or proactively solicit or procure from any such parties any Additional
Form 8-K Disclosure information. Unless otherwise directed by the Depositor, and
subject to any comments received to such disclosure from the Depositor by close
of business on the 2nd Business Day after such Reportable Event, the 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.
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 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 pm (New York City time) on the
4th Business Day after the related Reportable Event or (b) use reasonable best
efforts to file such Form 8-K, if the 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 make available
on its internet website a final executed copy of each Form 8-K. The parties to
this Agreement acknowledge (and each Additional Servicer and each Reporting
Sub-Servicer shall be required to acknowledge) that the performance by the
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 Reporting Sub-Servicer) 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, arrange
for execution and/or timely file such Form 8-K, where such failure results from
the Paying Agent's inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 8-K, not resulting from its own negligence, bad faith or
willful misconduct.
The Reporting Servicers shall each promptly notify (and the
Reporting Servicers shall (a) use reasonable efforts to cause each Additional
Servicer and each Reporting Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to promptly notify) the
Depositor and the Paying Agent, but in no event later than noon on the 2nd
Business Day after its occurrence, of any Reportable Event applicable to it of
which it has actual knowledge to the extent such party is identified as a
"Responsible Party" on Exhibit AA with regard to such Reportable Event.
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports
(a) On or before January 30 of the first year in which the Paying
Agent is able to do so under applicable law, the Paying Agent shall file a Form
15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act. After the filing of Form 15, the
obligations of the parties to this Agreement under Sections 13.1, 13.2, 13.3,
13.4, 13.5 and 13.7 shall be suspended for so long as the Trust is not subject
to the reporting requirements of the Exchange Act.
(b) The 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 disclosure
information that the Paying Agent has actual knowledge of and that is required
to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed
pursuant to this Agreement is not delivered to it within the delivery deadlines
set forth in this Agreement (including annual compliance statements pursuant to
Section 13.9, annual reports on assessment of compliance with servicing criteria
pursuant to Section 13.10 and attestation reports pursuant to Section 13.11). If
the 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 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 by an authorized officer of or a senior officer of the
Depositor in charge of securitization, as applicable. The parties to this
Agreement acknowledge (and each Additional Servicer and each Reporting
Sub-Servicer shall be required to acknowledge) that the performance by the
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 Reporting Sub-Servicer) 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, arrange for execution and/or timely file any such Form 15,
Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, where such
failure results from the 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 Reporting Servicers (each a "Certifying Servicer") shall each
(and the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) deliver electronically
to the Depositor and the Paying Agent on or before March 15th (with no grace
period), with respect to any Additional Servicer and each Reporting Sub-Servicer
(other than any party to this Agreement), or March 15th (with no grace period)
or if such day is not a Business Day, the immediately preceding Business Day
(with no cure period), with respect to the Certifying Servicers, of each year,
commencing in March 2008, an Officer's Certificate stating, as to the signer
thereof, that (A) a review of such Certifying Servicer's activities during the
preceding calendar year or portion thereof and of such Certifying Servicer's
performance under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, has been made
under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, such Certifying Servicer has fulfilled all of
its obligations under this Agreement, or the applicable sub-servicing agreement
or primary servicing agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
Promptly after receipt of each such Officer's Certificate, the Depositor shall
have the right to review such Officer's Certificate and, if applicable, consult
with each Certifying Servicer, as applicable, as to the nature of any failures
by such Certifying Servicer, in the fulfillment of any of the Certifying
Servicer's obligations hereunder or under the applicable sub-servicing or
primary servicing agreement. None of the Certifying Servicers or any Additional
Servicer or any Reporting Sub-Servicer shall be required to deliver, or to
endeavor to cause the delivery of, any such Officer's Certificate until April
15, in the case of a Certifying Servicer, or April 1, in the case of any
Additional Servicer (excluding any Primary Servicer) or any Reporting
Sub-Servicer (excluding any Primary Servicer), in any given year so long as it
has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
Notwithstanding the provisions of the immediately preceding
paragraph, with respect to each year in respect of which the Trust is not
subject to the reporting requirements of the Exchange Act, neither the Paying
Agent nor the Trustee shall be required to deliver its annual compliance
statement set forth above in this Section 13.9.
If a Serviced Companion Loan is deposited into an Other
Securitization, each Certifying Servicer responsible for performing servicing
functions with respect to the related Senior Mortgage Loan shall provide, if
requested by a party to the applicable Other Pooling and Servicing Agreement, an
Officer's Certificate as described in this Section. For the avoidance of doubt,
for so long as any Other Securitization is subject to the reporting requirements
of the Exchange Act, the obligations set forth above shall apply even if the
Trust is no longer subject to the reporting requirements of the Exchange Act.
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria
By March 15th (with no grace period) or if such day is not a
Business Day, the immediately preceding Business Day (with no cure period), the
Reporting Servicers, each at its own expense, shall furnish electronically (and
each of the preceding parties, as applicable, shall (a) use reasonable efforts
to cause, by March 15th (with no grace period), each Additional Servicer or
Reporting Sub-Servicer (other than a party to this Agreement) with which it has
entered into a servicing relationship on or prior to the Closing Date with
respect to the Mortgage Loans and (b) cause, by March 15th (with no grace
period), each Additional Servicer or Reporting Sub-Servicer (other than a party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to furnish, each at its own
expense), to the Paying Agent and the Depositor, a report on an assessment of
compliance with the Relevant Servicing Criteria with respect to commercial
mortgage backed securities transactions taken as a whole involving such party
that contains (A) a statement by such Reporting Servicer of its responsibility
for assessing compliance with the Relevant Servicing Criteria, (B) a statement
that such Reporting Servicer used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such Reporting Servicer's assessment
of compliance with the Relevant Servicing Criteria as of and for the period
ending the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 13.5, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
No later than the end of each fiscal year for the Trust for which a
Form 10-K is required to be filed, the Master Servicers, the Special Servicers,
any Primary Servicer and the Trustee shall each forward to the Paying Agent and
the Depositor the name and address of each Additional Servicer and Reporting
Sub-Servicer engaged by it and what Relevant Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Additional
Servicer or Reporting Sub-Servicer. When the Master Servicers, the Special
Servicers, any Primary Servicer, the Trustee, each Additional Servicer and each
Reporting Sub-Servicer submit their respective assessments by March 15th (with
no grace period), as applicable, to the 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 Additional Servicer and Reporting
Sub-Servicer engaged by it.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Reporting Servicers as to the nature of any
material instance of noncompliance with the Relevant Servicing Criteria by the
respective Reporting Servicer, and (ii) the Paying Agent shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule XVI and notify the Depositor of any exceptions.
None of the Master Servicers, the Special Servicers, any Primary Servicer, the
Trustee or any Additional Servicer or Reporting Sub-Servicer shall be required
to deliver, or to endeavor to cause the delivery of, any such reports until
April 15 in the case of the Master Servicers, the Special Servicers, any Primary
Servicer or the Trustee, or April 1 in the case of any Additional Servicer or
Reporting Sub-Servicer, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year. The parties hereto
acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 13.10 by the Reporting Servicers shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
If a Serviced Companion Loan is deposited into an Other
Securitization, the Master Servicer responsible for performing servicing
functions with respect to such Serviced Companion Loan, the Special Servicer
responsible for performing servicing functions with respect to such Serviced
Companion Loan (regardless of whether such Special Servicer has commenced
special servicing of any Mortgage Loan) and the Paying Agent, each at its own
expense, shall furnish (and each of the preceding parties, as applicable, shall
(a) use reasonable efforts to cause each Additional Servicer or Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Additional Servicer or Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to furnish, each at its own expense), if requested by a party to
the Other Pooling and Servicing Agreement, an annual report on assessment of
compliance as described in this Section and an attestation as described in
Section 13.11. For the avoidance of doubt, for so long as any Other
Securitization is subject to the reporting requirements of the Exchange Act, the
obligations set forth in this Section 13.2(b) shall apply even if the Trust is
no longer subject to the reporting requirements of the Exchange Act.
Notwithstanding any contrary provision of this Section 13.10 and
Section 13.11 (but subject to the immediately preceding paragraph), with respect
to each year in respect of which the Trust is not subject to the reporting
requirements of the Exchange Act, each Reporting Servicer (or any Additional
Servicer or Reporting Sub-Servicer with which the applicable Reporting Servicer
has entered into a servicing relationship with respect to the Mortgage Loans
(other than a party to this Agreement) will be entitled at its option, at its
own expense, in lieu of delivering or causing to be delivered a report on an
assessment of compliance with the Relevant Servicing Criteria otherwise required
to be delivered by such Person under this Section 13.10 and a related
attestation report of a registered public accounting firm otherwise required to
be delivered by such Person under Section 13.11, to cause a firm of independent
public accountants that is a member of the American Institute of Certified
Public Accountants to render and to deliver (which delivery shall be made not
later than the date when such report on an assessment of compliance and such
attestation report would have been required to be delivered) a statement to the
Paying Agent and the Depositor, to the effect that such firm has examined the
servicing operations of such Reporting Servicer for the previous calendar year
and that, on the basis of such examination, conducted substantially in
compliance with Uniform Single Attestation Program ("USAP"), such firm confirms
that such Reporting Servicer has complied during such previous calendar year
with minimum servicing standards (to the extent applicable to commercial and
multifamily mortgage loans) identified in USAP in all material respects, except
for such significant exceptions or errors in records that, in the opinion of
such firm, USAP requires it to report. In rendering its report such firm may
rely, as to matters relating to the direct servicing of securitized commercial
and multifamily mortgage loans by sub-servicers, upon comparable reports of
firms of independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered within
one year of such report) with respect to those sub-servicers.
Notwithstanding the provisions of the third preceding paragraph,
with respect to each year in respect of which the Trust is not subject to the
reporting requirements of the Exchange Act, neither the Paying Agent nor the
Trustee shall be required to deliver its report on an assessment of compliance
set forth above.
Section 13.11 Annual Independent Public Accountants' Servicing
Report
By March 15th (with no grace period) or if such day is not a
Business Day, the immediately preceding Business Day (with no cure period), of
each year, commencing in March 2008, the Reporting Servicers, each at its own
expense, shall cause (and each of the Reporting Servicers, as applicable, shall
(a) use reasonable efforts to cause, by March 15th (with no grace period), each
Additional Servicer or Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
15th (with no grace period), each Additional Servicer or Reporting Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to cause, each at its own expense) a registered public accounting firm
(which may also render other services to any Reporting Servicer) that is a
member of the American Institute of Certified Public Accountants to furnish
electronically a report to the Paying Agent and the Depositor, to the effect
that (i) it has obtained a representation regarding certain matters from the
management of such Reporting Servicer, which includes an assessment from such
Reporting Servicer of its compliance with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
Notwithstanding the foregoing, with respect to each year in respect of which the
Trust is not subject to the reporting requirements of the Exchange Act, the
Reporting Servicer (or any Additional Servicer or Reporting Sub-Servicer with
which the applicable Reporting Servicer has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) may, in lieu of furnishing an attestation report as otherwise
required by this Section 13.11, furnish an attestation report as described in
the second to last paragraph of Section 13.10.
Promptly after receipt of such report from the Reporting Servicers
(or any Additional Servicer or Reporting Sub-Servicer with which the applicable
Reporting Servicer has entered into a servicing relationship with respect to the
Mortgage Loans (other than a party to this Agreement)), (i) the Depositor shall
have the right to review the report and, if applicable, consult with the
applicable Reporting Servicer as to the nature of any material instance of
noncompliance by the Master Servicers, the Special Servicers, the applicable
Primary Servicer, the Trustee, the Paying Agent or any such Additional Servicer
or Reporting Sub-Servicer 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 Reporting Servicers
shall not be required to deliver, or to endeavor to cause the delivery of, such
reports until April 15 in the case of the Master Servicers, the Special
Servicers, any Primary Servicer, the Trustee or the Paying Agent, or April 1 in
the case of any Additional Servicer or Reporting Sub-Servicer, in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year.
For the avoidance of doubt, with respect to each year in respect of
which the Paying Agent, on behalf of the Trust, is not subject to the reporting
requirements of the Exchange Act, neither the Paying Agent nor the Trustee shall
be required to deliver the accountant's report for itself set forth above.
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification
Each of the Reporting Servicers (each an "Indemnifying Party") shall
indemnify and hold harmless each Certification Party (and, with respect to a
Reporting Servicer performing servicing functions with respect to a Serviced
Companion Loan in an Other Securitization, any comparable party in such Other
Securitization) the Depositor, their respective directors and officers, and each
other person who controls any such entity within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act (each a
"Certification Indemnitee") against any and all expenses, losses, claims,
damages and other liabilities, including without limitation the costs of
investigation, legal defense and any amounts paid in settlement of any claim or
litigation arising out of or based upon (i) the failure to perform its
obligations under this Article XIII by the times required herein or (ii) the
failure of any Additional Servicer or Reporting Sub-Servicer retained by it
(other than, in the case of the Master Servicers and Special Servicers, as
applicable, a Seller Sub-Servicer) to perform its obligations to the Depositor
or Paying Agent under this Article XIII by the times required herein. It is
hereby acknowledged that any Exchange Act reporting obligations under this
Article XIII relating to the Serviced Loan Groups shall be obligations of the
applicable Master Servicer, the applicable Special Servicer, the Trustee and the
Paying Agent, or any Additional Servicers or Reporting Sub-Servicers appointed
by either of them, as the case may be.
The Reporting Servicers shall (a) use reasonable efforts to cause
each Additional Servicer and each Reporting Sub-Servicer (other than a party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) use
reasonable efforts to cause each Additional Servicer and each Reporting
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to indemnify and hold harmless each Certification Party (and,
with respect to a Reporting Servicer performing servicing functions with respect
to a Serviced Companion Loan in an Other Securitization, any comparable party in
such 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 a
breach of its obligations to provide any of the annual compliance statements or
annual assessment of servicing criteria or attestation reports pursuant to this
Agreement, or the applicable sub-servicing or primary servicing agreement, as
applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Indemnitee, then the Reporting
Servicers responsible for such indemnification hereunder (collectively with each
Additional Servicer and each Reporting Sub-Servicer "Performing Party") shall
(and the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans (other than a party to this Agreement) and (b) use reasonable
efforts to cause each Additional Servicer and each Reporting Sub-Servicer with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans (other than a party to this Agreement), to)
contribute to the amount paid or payable to the Certification Indemnitee as a
result of the losses, claims, damages or liabilities of the Certification
Indemnitee in such proportion as is appropriate to reflect the relative fault of
the Certification Indemnitee on the one hand and the Performing Party on the
other in connection with a breach of the Performing Party's obligations pursuant
to this Article XIII. The Master Servicers, the Special Servicers, any Primary
Servicer, the Trustee and the Paying Agent shall use reasonable efforts to cause
each Additional Servicer and each Reporting Sub-Servicer with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement) to agree to the foregoing
indemnification and contribution obligations.
As promptly as reasonably practicable after receipt by any
Certification Indemnitee under this Section 13.12 of notice of the commencement
of any action, and as a condition precedent to the indemnification provided for
in this Section 13.12, such Certification Indemnitee will, if a claim in respect
thereof is to be made against the applicable Indemnifying Party under this
Section 13.12, notify the applicable Indemnifying Party in writing of the
commencement thereof. In case any such action is brought against any
Certification Indemnitee, the applicable Indemnifying Party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Certification Indemnitee promptly after receiving the aforesaid
notice from such Certification Indemnitee, to assume the defense thereof, with
counsel selected by the applicable Indemnifying Party and reasonably
satisfactory to such Certification Indemnitee (which approval shall not be
unreasonably withheld, conditioned or delayed); provided, however, that if the
defendants in any such action include both the Certification Indemnitee and the
applicable Indemnifying Party, and the Certification Indemnitee shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other Indemnified Parties that are different from or additional to those
available to the applicable Indemnifying Party, the Certification Indemnitee
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Certification Indemnitee. Upon receipt of notice from the applicable
Indemnifying Party to such Certification Indemnitee of its election so to assume
the defense of such action and approval by the Certification Indemnitee of
counsel (which approval shall not be unreasonably withheld, conditioned or
delayed), the applicable Indemnifying Party will not be liable for any legal or
other expenses subsequently incurred by such Certification Indemnitee in
connection with the defense thereof, unless the applicable Indemnifying Party
has authorized (which authorization shall not be unreasonably withheld,
conditioned or delayed) the employment of counsel for the Certification
Indemnitee at the expense of the applicable Indemnifying Party. The applicable
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld, conditioned or delayed) but, if settled with such consent or if there
be a final judgment for the plaintiff, the applicable Indemnifying Party shall
indemnify the Certification Indemnitee from and against any loss or liability by
reason of such settlement or judgment. If the applicable Indemnifying Party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the Certification Indemnitee (which approval
shall not be unreasonably withheld, conditioned or delayed) or, if such
settlement provides for an unconditional release of the Certification Indemnitee
in connection with all matters relating to the proceeding that have been
asserted against the Certification Indemnitee in such proceeding by the other
parties to such settlement, which release does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
Certification Indemnitee without the consent of the Certification Indemnitee.
Section 13.13 Amendments
This Article XIII may be amended by the parties hereto pursuant to
Section 15.3 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement) for purposes of complying with Regulation AB and/or to conform to
standards developed within the commercial mortgage backed securities market;
provided that the reports and certificates required to be prepared and delivered
pursuant to Sections 13.9, 13.10 and 13.11 shall not be eliminated without
Rating Agency Confirmation.
Section 13.14 Exchange Act Report Signatures; Article XIII Notices
(a) Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, by the Paying Agent pursuant to
a power of attorney provided to the Paying Agent by the Depositor in accordance
with procedures to be agreed upon by the Depositor and the Paying Agent and
meeting the requirements of Item 601(b)(24) of Regulation S-K. The Depositor
shall provide its signature or power of attorney to the Paying Agent by
electronic or fax transmission (with hard copy to follow by overnight mail) no
later than noon (New York City time) on the Business Day prior to the 15th
calendar day following the related Distribution Date for Form 10-D, and not
later than the end of business on the 3rd Business Day after the Reportable
Event for Form 8-K (provided, that in each case the 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 Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq.
and the signing party at the Paying Agent, if applicable, can be contacted at
its Corporate Trust Office.
(b) The Paying Agent shall have no liability for any loss, expense,
damage or claim arising out of or with respect to its having signed by power of
attorney any Form 8-K or Form 10-D if the power of attorney provided to it by
the Depositor pursuant to the immediately preceding paragraph was not properly
prepared, or if the requirements of Regulation S-K applicable to the use of
powers of attorney are not complied with, not resulting from its own negligence,
bad faith or willful misconduct.
(c) For the avoidance of doubt:
(i) No Master Servicer shall be subject to an Event of Default
pursuant to the last clause of the definition of "Event of Default" and no
Special Servicer shall be terminated pursuant to Section 9.30(b)(xi), nor
shall any such party be deemed to not be in compliance under this
Agreement for purposes of Section 13.14, during any grace period provided
for in this Article XIII, provided, that if any such party fails to comply
with the delivery requirements of this Article XIII by the expiration of
any applicable grace period such failure shall constitute an Event of
Default or be grounds for termination, as applicable; and
(ii) No Master Servicer shall be subject to an Event of Default
pursuant to the last clause of the definition of "Event of Default" and no
Special Servicer shall be terminated pursuant to Section 9.30(b)(xi) nor
shall any such party be deemed to not be in compliance under this
Agreement for purposes of Section 13.14, for failing to deliver any item
required under this Article XIII by the time required hereunder following
the date that the Paying Agent files the Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act,
unless such items will be included in any Exchange Act report that relates
to any year in which the Trust was subject to the filing requirements of
the Exchange Act.
(d) Any notice or notification required to be delivered by the
Paying Agent to the Depositor pursuant to this Article XIII, may be delivered by
facsimile to Xxxxxx Friend at (000) 000-0000 or Xxxxxxx Xxxxxx at (212)
507-4011, via e-mail to Xxxxxx Friend at xxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx or
Xxxxxxx Xxxxxx at Xxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx, or telephonically by calling
Xxxxxx Friend at (000) 000-0000 or Xxxxxxx Xxxxxx at (000) 000-0000, or such
other contact information as may hereafter be furnished by the Depositor to the
Paying Agent.
Section 13.15 Termination of the Paying Agent and Sub-Servicers
Each of the Reporting Servicers shall terminate, in accordance with
the related sub-servicing agreement, any Sub-Servicer with which it has entered
into such sub-servicing agreement, and the Master Servicer shall terminate any
Primary Servicer in accordance with the terms of the applicable Primary
Servicing Agreement, if such Sub-Servicer or the applicable Primary Servicer, as
the case may be, is in breach of any of its obligations under such sub-servicing
agreement or the applicable Primary Servicing Agreement, as the case may be,
whose purpose is to facilitate compliance by the Depositor of the reporting
requirements of the Exchange Act or with the provisions of Regulation AB and the
related rules and regulations of the Commission.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the 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 or trustee shall have accepted the appointment in
accordance with Section 7.6 and all other applicable provisions of this
Agreement, (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 Depositor gives written
notice to it that it is terminated in accordance with this Section 13.15 and
(ii) the Paying Agent's failure to comply does not cause it to fail in its
obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the
case may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K
Filing Deadline, then the Depositor shall cease to have the right to terminate
the Paying Agent under this Section 13.15 on the date on which such Form 8-K,
Form 10-D or Form 10-K is so filed.
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 15.2 Entire Agreement
This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
Section 15.3 Amendment
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC, or
the Class EI Grantor Trust or each Floating Rate Grantor Trust as a grantor
trust) for the purposes of federal income tax law (or comparable provisions of
state income tax law), (iv) to make any other provisions with respect to matters
or questions arising under or with respect to this Agreement not inconsistent
with the provisions hereof, (v) to modify, add to or eliminate the provisions of
Article III relating to transfers of Residual Certificates, (vi) to amend any
provision herein to the extent necessary or desirable to list the Certificates
on a stock exchange, including, without limitation, the appointment of one or
more sub-paying agents and the requirement that certain information be delivered
to such sub-paying agents, (vii) to cause the provisions herein to conform to
the provisions of the Swap Transactions and the related documents or (viii) to
make any other amendment which does not adversely affect in any material respect
the interests of any Certificateholder (unless such Certificateholder consents);
provided, however, that such amendment shall not significantly change the
activities of the Trust (insofar as such change would adversely affect the
status of the Trust as a "qualifying special purpose entity" under FASB 140). No
such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall (A) adversely affect in any material respect the interests of any
Holder not consenting thereto, without the consent of 100% of the
Certificateholders adversely affected thereby or (B) adversely affect the status
of any REMIC Pool as a REMIC (or the Class EI Grantor Trust or each Floating
Rate Grantor Trust as a grantor trust). Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee may
require an Opinion of Counsel and a Nondisqualification Opinion (in the case of
clauses (i), (ii) and (iii), at the expense of the Depositor, and otherwise at
the expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such Rating Agency Confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with Rating Agency Confirmation that such amendment would not cause the
ratings on any Class of Certificates to be qualified, withdrawn or downgraded;
provided, however, that such amendment may not effect any of the items set forth
in clauses (i) through (iv) of the proviso in paragraph (c) of this Section
15.3. The Trustee may request, at its option, to receive a Nondisqualification
Opinion and/or an Opinion of Counsel that such amendment will not result in an
Adverse Grantor Trust Event, as applicable, and an Opinion of Counsel that any
amendment pursuant to this Section 15.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate or reduce a Master Servicer's
or the Trustee's obligation to make an Advance (including, without limitation,
in the case of the applicable Master Servicer, the obligation to advance on the
Serviced Companion Loans) or alter the Servicing Standard except as may be
necessary or desirable to comply with the REMIC Provisions, (iv) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
(as evidenced by a Nondisqualification Opinion) or the Class EI Grantor Trust
and each Floating Rate Grantor Trust as a grantor trust without the consent of
100% of the Certificateholders (including the Class R-I, Class R-II and Class
R-III Certificateholders), (v) adversely affect in any material respect the
interests of the Holders of the Certificates in a manner other than as described
in the immediately preceding clause (i), without the consent of the Holders of
all Certificates affected thereby, (vi) significantly change the activities of
the Trust, without the consent of the Holders of Certificates representing more
than 50% of all the Voting Rights, (vii) modify the provisions of this Section
15.3 without the consent of the Holders of all Certificates then outstanding; or
(viii) significantly change the activities of the Trust (insofar as such change
would adversely affect the status of the Trust as a "qualifying special purpose
entity" under FASB 140) without the consent of the Holders of not less than 51%
of the Aggregate Certificate Balance of the Certificates then outstanding
(without regard to Certificates held by the Depositor, any of the Depositor's
Affiliates and/or agents or any Seller); provided that no such amendment may
modify Section 8.18 of this Agreement without Rating Agency Confirmation. The
Trustee shall not consent to any amendment to this Agreement pursuant to this
subsection (c) unless it shall have first received a Nondisqualification Opinion
and/or an Opinion of Counsel that such amendment will not result in an Adverse
REMIC Event or an Adverse Grantor Trust Event, as applicable, and an Opinion of
Counsel that any amendment pursuant to this Section 15.3(c) is permitted by this
Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall
be borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 15.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee,
with the assistance of the Certificate Registrar, shall furnish written
notification of the substance of such amendment to each Holder, the Depositor
and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 15.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this
Section 15.3, the parties hereto agree that this Agreement may not be amended in
any manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
(h) Notwithstanding the fact that the provisions in Section 15.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trustee, the Master Servicers or the Special
Servicers, any Certificate beneficially owned by a Seller or any of its
Affiliates shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 15.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this
Section 15.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 13.13 herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation, except as provided in Section 13.13.
(j) 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 each Swap Transaction without the prior written consent of
the Swap Counterparty (which shall not be unreasonably withheld).
(k) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended without the consent of the holder of a Serviced
Companion Loan if such amendment would materially and adversely affect the
rights of such holder hereunder.
(l) In addition, notwithstanding anything to the contrary contained
in this Section 15.3, the parties hereto agree that this Agreement may not be
amended with respect to those provisions of this Agreement to which an Other
Master Servicer, an Other Special Servicer, an Other Trustee or an Other Paying
Agent is a third party beneficiary as provided for in Section 15.9 hereof,
without the written consent of such Other Master Servicer, such Other Special
Servicer, such Other Trustee or such Other Paying Agent, as the case may be.
Section 15.4 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 15.5 Notices
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by (A) in the
case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend; (B) in the case of the Trustee, Paying
Agent and Certificate Registrar at the applicable Corporate Trust Office; (C) in
the case of the Capmark Master Servicer, Capmark Finance Inc., 000 Xxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director - Commercial Servicing
Operations, Fax 000-000-0000, Phone: 000-000-0000; (D) in the case of the NCB
Master Servicer, NCB, FSB, 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing, Fax: (202)
000-0000; (E) in the case of the Xxxxx Fargo Master Servicer, Xxxxx Fargo Bank,
National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Commercial Mortgage Servicing, with a copy to Xxxxxx X.
Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (F) in the case of the General Special
Servicer, Centerline Servicing Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Xxxxxxx Xxxxxx, facsimile number (000) 000-0000; (G) in
the case of the Co-op Special Servicer, National Consumer Cooperative Bank, 0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx Xxxxx,
Real Estate Master Servicing, Fax: (000) 000-0000; (H) in the case of NCB, FSB,
NCB, FSB, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx
Xxxxxxxx; (I) in the case of MSMCH, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Friend; (J) in the case of Centerline REIT Inc., 0000 X.
X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxx,
facsimile number (000) 000-0000 and (K) in the case of Nationwide as Primary
Servicer, Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxx 00000-0000, Attention: Xxxxxx Xxxxxxx, Facsimile Number: (614)
249-4247. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
Section 15.6 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 15.7 Indulgences; No Waivers
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Section 15.8 Headings Not to Affect Interpretation
The headings contained in this Agreement are for convenience of
reference only, and shall not be used in the interpretation hereof.
Section 15.9 Benefits of Agreement
Nothing in this Agreement or in the Certificates, express or
implied, shall give to any Person, other than the parties to this Agreement 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) each holder of a Serviced Companion Loan (including
any servicer or trustee of any related Other Securitization) is an intended
third-party beneficiary in respect of the rights afforded it under this
Agreement, (ii) the Swap Counterparty and its permitted successors and assigns
shall be third-party beneficiaries with respect to this Agreement and (iii) each
Primary Servicer is an intended third-party beneficiary to the extent applicable
to such Primary Servicer. With respect to a Non Trust-Serviced Pari Passu Loan,
the related Other Master Servicer, the related Other Special Servicer, the
related Other Trustee and or the related Other Paying Agent, as applicable,
shall each be a third party beneficiary of this Agreement with respect to all
provisions herein expressly relating to compensation, reimbursement or
indemnification of the related Other Master Servicer, the related Other Special
Servicer, the related Other Trustee or the related Other Paying Agent, as the
case may be (including reimbursement for any Pari Passu Loan Nonrecoverable
Servicing Advance), any provisions relating to the indemnification of any such
parties and the provisions regarding coordination of P&I Advances. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary without its reasonable consent. Each
holder of a right to receive Excess Servicing Fees shall be a third party
beneficiary to this Agreement with respect to its right to receive such Excess
Servicing Fees.
Section 15.10 Special Notices to the Rating Agencies
(a) The Paying Agent (or the applicable Master Servicer in the case
of clauses (vi), (vii) and (ix) below, the Custodian in the case of clause (ii)
below) and the Trustee in the case of clauses (iii) and (x) below shall give
prompt notice to the Rating Agencies, the Special Servicer and the Operating
Adviser of the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Sections 13.13 or
15.3 hereof;
(ii) the Interim Certification and the Final Certification required
pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan pursuant to
Section 2.3(a) hereof;
(iv) any resignation of a Master Servicer, the Special Servicer, the
Paying Agent, the Operating Adviser or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to a 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 (other than with respect to a Co-op Mortgage Loan as to which
the NCB, FSB Subordinate Debt Conditions have been satisfied);
(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) Each Certifying Servicer shall, and the Certifying Servicers
shall each (i) use reasonable efforts to cause each Additional Servicer and each
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (ii) cause each Additional Servicer and each Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to (x) forward a copy of each annual compliance statement pursuant to
Section 13.9 hereof, (y) forward a copy of each annual report on assessment with
servicing criteria pursuant to Section 13.10 hereof and (z) forward a copy of
each annual independent public accountants' servicing report pursuant to Section
13.11 hereof to the Rating Agencies and the Operating Adviser.
(c) All notices to the Rating Agencies shall be in writing and sent
by first class mail, telecopy or overnight courier, as follows:
If to Fitch, to:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
If to DBRS, to:
DBRS, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Group
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(d) The Paying Agent, or in the case of clauses (i) and (ii), the
successor trustee or paying agent, as applicable, 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 or the Paying Agent
pursuant to Section 7.6; or
(ii) the appointment of a successor trustee or paying agent pursuant
to Section 7.7; or
(iii) the appointment of a successor Operating Adviser pursuant to
Section 9.37.
(e) The Master Servicers shall deliver to the Rating Agencies and
the Depositor any other information as reasonably requested by the Rating
Agencies and the Depositor, and the applicable Master Servicer shall deliver to
the Primary Servicers and the Special Servicer each of the reports required to
be delivered by the applicable Master Servicer to the Primary Servicers 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.
(f) Any notice or other document required to be delivered or mailed
by the Depositor, the Master Servicers, the Paying Agent or the Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
Section 15.11 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 15.12 Intention of Parties
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related rights and property to the Trustee, for the
benefit of the Certificateholders, by the Depositor as provided in Section 2.1
be, and be construed as, an absolute sale of the Mortgage Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that, notwithstanding the intent of the parties, the Mortgage Loans
or any related property is held to be the property of the Depositor, or if for
any other reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans or any related property, then this Agreement shall be
deemed to be a security agreement; and the conveyance provided for in Section
2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the
benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title, and interest, whether now owned or hereafter acquired,
in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the property described in clauses
(1)-(4) below: (1) the Mortgage Loans (including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies) identified on the Mortgage Loan Schedule, including
all Qualifying Substitute Mortgage Loans, all distributions with respect
thereto payable on and after the Cut-Off Date, and the Mortgage Files; (2)
the Distribution Account, the Floating Rate Accounts, the Interest Reserve
Account, the Reserve Account, all REO Accounts, and the Certificate
Accounts, including all property therein and all income from the
investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I
Regular Interests, the REMIC II Regular Interests and the Floating Rate
Regular Interests; and (4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages
and such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the applicable
Master Servicer and the Trustee, shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The applicable Master Servicer
shall file, at the expense of the Trust as an Additional Trust Expense all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect the Trustee's security interest in such property, including without
limitation (i) continuation statements, and (ii) such other statements as may be
occasioned by any transfer of any interest of a Master Servicer or the Depositor
in such property. In connection herewith, the Trustee shall have all of the
rights and remedies of a secured party and creditor under the Uniform Commercial
Code as in force in the relevant jurisdiction.
Section 15.13 Recordation of Agreement
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere.
Such recordation, if any, shall be effected by the applicable Master Servicer at
the expense of the Trust as an Additional Trust Expense, but only upon direction
of the Depositor accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders of the Trust.
Section 15.14 Rating Agency Monitoring Fees
The parties hereto acknowledge that on the Closing Date the Sellers
will pay the ongoing monitoring fees of the Rating Agencies relating to the
rating of the Certificates and that no monitoring fees are payable subsequent to
the Closing Date in respect of the rating of the Certificates. The Master
Servicers shall not be required to pay any such fees or any fees charged for any
Rating Agency Confirmation (except any confirmation required under Section 8.22,
Section 8.23 or in connection with a termination and replacement of a Master
Servicer following an Event of Default of such Master Servicer).
IN WITNESS WHEREOF, the Depositor, the Capmark Master Servicer, the
Xxxxx Fargo Servicer, the NCB Master Servicer, the General Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying 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 Capmark Master Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer
By: /s/ Kristian X.X. Xxxxxxxxx
--------------------------------------
Name: Kristian X.X. Xxxxxxxxx
Title: Vice President
NCB, FSB,
as NCB Master Servicer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name:Xxxxx Xxxxxx
Title:Senior Vice President
CENTERLINE SERVICING INC.,
as General Special Servicer
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: President and COO
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar
and Authenticating Agent
By: /s/ Xxx Xxxxxxxxx
--------------------------------------
Name:Xxx Xxxxxxxxx
Title:Vice President
PRINCIPAL GLOBAL INVESTORS, LLC, in its
capacity as Primary Servicer solely
with respect to Sections 5.1(g), 8.3,
8.4, 8.7, 8.10, 8.18, 8.25(f), 9.5,
15.10(b) and Article XIII of this
Agreement
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
--------------------------------------
Name:Xxxxxxxxxxx X. Xxxxxxxxx
Title: Vice President and Associate
General Counsel
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant General Counsel
STATE OF NY )
: ss.:
COUNTY OF NY )
On the 16 day of November in the year 2007, before me, the
undersigned, personally appeared Xxxxxxx Xxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxx Xxxxx
------------------
Xxxxxxxx Xxxxx
Notary Public, State of New York
Registration No. 01SM6162401
Qualified in Kings County
Commission Expires March 12, 0000
XXXXX XX XXXXXXXXXXXX )
: ss.:
COUNTY OF XXXXXXXXXX )
On the 19th day of November in the year 2007, before me, the
undersigned, personally appeared Xxxxxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the county of Xxxxxxxxxx, Pennsylvania (insert the
city or other political subdivision and the state or county or other place the
acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Commonwealth of Pennsylvania
Notary Seal
Xxxxxxxxx X. Xxxxxxxxxx, Notary Public
Horsham Twp., Montgoemery County
My Commission Expires January 1, 0000
XXXXX XX XXXXXXXXXX )
: ss.:
COUNTY OF SAN FRANCISCO )
On the 15th day of November in the year 2007, before me, the
undersigned, personally appeared Kristian X.X. Xxxxxxxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the individuals
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their capacities, and that by their signatures on the
instrument, the individuals, or the person upon behalf of which the individuals
acted, executed the instrument, and that such individuals made such appearance
before the undersigned in the county of San Francisco (insert the city or other
political subdivision and the state or county or other place the acknowledgment
was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Commission # 1708149
Notary Public- California
San Francisco County
My Comm. Expires Dec 3, 0000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the 16th day of November in the year 2007, before me, the
undersigned, personally appeared Xxxxx Xxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the city of New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxx Xxxxxx Xxxxx
------------------------
Xxxxxxx Xxxxxx Xxxxx
Notary Public, State of New York
No. 01AL6093900
Qualified in Suffold County
Commission Expires on June 9, 0000
XXXXX XX XXXXX )
: ss.:
COUNTY OF DALLAS )
On the 21st day of November in the year 2007, before me, the
undersigned, personally appeared Xxxx Xxxxx, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the City of Irvign, County of Dallas (insert the city or
other political subdivision and the state or county or other place the
acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
Notary Public, State of Texas
My Commission Expires
February 14, 0000
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
On the 16th day of November in the year 2007, before me, the
undersigned, personally appeared Xxxxxxxx X. Xxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individuals whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their capacities, and that by their signatures on the
instrument, the individuals, or the person upon behalf of which the individuals
acted, executed the instrument, and that such individuals made such appearance
before the undersigned in the County of Xxxx of the State of Illinois (insert
the city or other political subdivision and the state or county or other place
the acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxxx Xxxxxxxx
------------------
Xxxxx Xxxxxxxx
"Official Seal"
Xxxxx Xxxxxxxx
Notary Public State of Illinois
My Commission Expires 08/23/2009
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 29th day of November in the year 2007, before me, the
undersigned, personally appeared Xxx Xxxxxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument, and that such individual made such appearance before
the undersigned in the city of New York (insert the city or other political
subdivision and the state or county or other place the acknowledgment was
taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxx X. Xxxx
----------------
Xxxx X. Xxxx
Notary Public, State of New York
No. 02AI6077902
Qualified in Kings County
Commission Expired July 20, 0000
XXXXX XX XXXX )
: ss.:
COUNTY OF POLK )
On the 19th day of November in the year 2007, before me, the
undersigned, personally appeared Xxxxxxxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the County of Polk
(insert the city or other political subdivision and the state or county or other
place the acknowledgment was taken).
Signature and Office of individual taking acknowledgment
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Commission Number 743611
My Commission Expires
10-24-2009
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 5.320% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-1 CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $51,900,000
CERTIFICATE BALANCE OF THIS CLASS A-1 TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$51,900,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1-1 CUSIP No.: 61756U AA9
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer,
and the Co-op Special Servicer, a summary of certain of the pertinent provisions
of which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-1 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Certificate Registrar, the
Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer, and the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the Certificate Registrar, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, and the Co-op
Special Servicer or the Operating Adviser shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar,
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-2
[FORM OF CLASS A-1A CERTIFICATE]
THIS CLASS A-1A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 5.688% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-1A CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $314,528,000
CERTIFICATE BALANCE OF THIS CLASS A-1A TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$314,528,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1A-1 CUSIP No.: 61756U AB7
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-1A Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Certificate Registrar, the
Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the Certificate Registrar, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer or the Operating Adviser shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:_______________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-3
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 5.623% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-2 CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $91,100,000
CERTIFICATE BALANCE OF THIS CLASS A-2 TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$91,100,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-2-1 CUSIP No.: 61756U AC5
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-2 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-4
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 5.852% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-3 CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $83,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3 TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$83,000,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-3-1 CUSIP No.: 61756U AD3
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-3 Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-3 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-5
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 5.809% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-4 CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $1,276,553,000
CERTIFICATE BALANCE OF THIS CLASS A-4 TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$500,000,000] [$500,000,000]
[$276,553,000] (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-4-[1][2][3] CUSIP No.: 61756U AE1
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-4 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-6
[FORM OF CLASS A-M CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.111% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-M CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $194,651,000
CERTIFICATE BALANCE OF THIS CLASS A-M TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$194,651,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-M-1 CUSIP No.: 61756U AF8
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-7
[FORM OF CLASS A-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 PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 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.
THIS CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PASS-THROUGH RATE CALCULATION: LIBOR + CAPMARK MASTER SERVICER: CAPMARK
1.130% FINANCE, INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 XXXXX FARGO MASTER SERVICER: XXXXX
FARGO BANK, NATIONAL ASSOCATION
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE CO-OP SPECIAL SERVICER: NATIONAL
CLASS A-MFL CERTIFICATES AS OF THE CONSUMER COOPERATIVE BANK
CLOSING DATE: $20,000,000
CERTIFICATE BALANCE OF THIS CLASS A-MFL PAYING AGENT: XXXXX FARGO BANK,
CERTIFICATE AS OF THE CLOSING DATE: NATIONAL ASSOCIATION
$20,000,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. A-MFL-1 CUSIP No.: 61756U BE0
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-MFL Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Master Servicer, the NCB Master Servicer, the General Special Servicer,
the Co-op Special Servicer or the Operating Adviser shall be affected by notice
to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: NOVEMBER 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-8
[FORM OF CLASS A-MA CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.107% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-MA CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $44,932,000
CERTIFICATE BALANCE OF THIS CLASS A-MA TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$44,932,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-MA-1 CUSIP No.: 61756U AG6
CLASS A-MA 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-MA 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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MA CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-9
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-J CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $130,988,000
CERTIFICATE BALANCE OF THIS CLASS A-J TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$130,988,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-J-1 CUSIP No.: 61756U AH4
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-10
[FORM OF CLASS A-JFL CERTIFICATE]
THIS CLASS A-JFL CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
AS LONG AS THE RELATED 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") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A
COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-JFL CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PASS-THROUGH RATE CALCULATION: LIBOR + CAPMARK MASTER SERVICER: CAPMARK
1.450% FINANCE, INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 GENERAL SPECIAL SERVICER: CENTERLINE
SERVICING INC.
FIRST DISTRIBUTION DATE: DECEMBER 14, CO-OP SPECIAL SERVICER: NATIONAL
2007 CONSUMER COOPERATIVE BANK
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-JFL CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $30,000,000
CERTIFICATE BALANCE OF THIS CLASS A-JFL TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$30,000,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-JFL-1 CUSIP No.: 61756U BF7
CLASS A-JFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class A-JFL Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-JFL Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: NOVEMBER 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-JFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-11
[FORM OF CLASS A-JA CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS A-JA CERTIFICATES AS OF THE NATIONAL ASSOCIATION
CLOSING DATE: $33,699,000
CERTIFICATE BALANCE OF THIS CLASS A-JA TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$33,699,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-JA-1 CUSIP No.: 61756U AJ0
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-JA 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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class A-J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-JA CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-12
[FORM OF CLASS 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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS B CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: [$19,469,000]
CERTIFICATE BALANCE OF THIS CLASS B TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0](1) [$19,469,000] (2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. B-1 CUSIP No.: [U61784 AD3] (1) [61756U
AN1](2)
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class B Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar,
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-13
[FORM OF CLASS 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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS C CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $25,958,000
CERTIFICATE BALANCE OF THIS CLASS C TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0] [$25,958,000] (SUBJECT TO SCHEDULE
OF EXCHANGES ATTACHED)
No. C-1 CUSIP No.: [U61784 AE1](1) [61756U
AP6](2)
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class C Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-14
[FORM OF CLASS 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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS D CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $16,224,000
CERTIFICATE BALANCE OF THIS CLASS D TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0] [$16,224,000] (SUBJECT TO SCHEDULE
OF EXCHANGES ATTACHED)
No. D-1 CUSIP No.: [U61784 AF8](1) [61756U
AQ4](2)
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class D Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-15
[FORM OF CLASS 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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS E CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $38,938,000
CERTIFICATE BALANCE OF THIS CLASS E TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0] [$38,938,000] (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. E-1 CUSIP No.: [U61784 AG6](1) [61756U
AR2](2)
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class E Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-16
[FORM OF CLASS 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 PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS F CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $12,979,000
CERTIFICATE BALANCE OF THIS CLASS F TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0][$12,979,000] (SUBJECT TO SCHEDULE
OF EXCHANGES ATTACHED)
No. F-1 CUSIP No.: [U61784 AH4](1) [61756U
AS0](2)
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class F Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-17
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS G CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $35,693,000
CERTIFICATE BALANCE OF THIS CLASS G TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
[$0] [$35,693,000] (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. G-1 CUSIP No.: [U61784 AJ0](1) [61756U
AT8](2)
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class G Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
the Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer and the Co-op Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-18
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS H CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $25,958,000
CERTIFICATE BALANCE OF THIS CLASS H TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$25,958,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. H-1 CUSIP No.: [U61784 AK7](1) [61756U
AU5](2)
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class H Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-19
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-----------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS J CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $25,958,000
CERTIFICATE BALANCE OF THIS CLASS J TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$25,958,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. J-1 CUSIP No.: [61756U AV3](1) [61756U
AV3](2)
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class J Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under The Pooling And Servicing Agreement), The Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-20
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 6.153% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS K CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $32,448,000
CERTIFICATE BALANCE OF THIS CLASS K TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$32,448,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. K-1 CUSIP No.: [U61784 AM3](1) [61756U
AW1](2)
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class K Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-21
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS L CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $9,735,000
CERTIFICATE BALANCE OF THIS CLASS L TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$9,735,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. L-1 CUSIP No.: [U61784 AN1](1) [61756U
AX9](2)
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class L Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-22
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-----------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS M CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $9,734,000
CERTIFICATE BALANCE OF THIS CLASS M TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$9,734,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. M-1 CUSIP No.: [U61784 AP6](1) [61756U
AY7](2)
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class M Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-23
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS N CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $9,734,000
CERTIFICATE BALANCE OF THIS CLASS N TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$9,734,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. N-1 CUSIP No.: [U61784 AQ4](1) [61756U
AZ4](2)
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class N Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class N Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-24
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-----------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS O CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $16,224,000
CERTIFICATE BALANCE OF THIS CLASS O TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$16,224,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. O-1 CUSIP No.: [U61784 AR2](1) [61756U
BA8](2)
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class O Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class O Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-25
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
---------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS P CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $6,490,000
CERTIFICATE BALANCE OF THIS CLASS P TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$6,490,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. P-1 CUSIP No.: [U61784 AS0](1) [61756U
BB6](2)
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class P Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class P Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
EXHIBIT A-26
[FORM OF CLASS Q CERTIFICATE]
THIS CLASS Q CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
---------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS Q CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $9,734,000
CERTIFICATE BALANCE OF THIS CLASS Q TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$9,734,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. Q-1 CUSIP No.: [U61784 AT8(1) [61756U
BC4](2)
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class Q Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-27
[FORM OF CLASS S CERTIFICATE]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
---------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 4.652% CAPMARK MASTER SERVICER: CAPMARK
FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
AGGREGATE CERTIFICATE BALANCE OF THE PAYING AGENT: XXXXX FARGO BANK,
CLASS S CERTIFICATES AS OF THE CLOSING NATIONAL ASSOCIATION
DATE: $29,203,781
CERTIFICATE BALANCE OF THIS CLASS S TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATE AS OF THE CLOSING DATE: ASSOCIATION
$29,203,781 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. S-1 CUSIP No.: [U61784 AU5](1) [61756U
BD2](2)
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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class S Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
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 fourth
business day following the 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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-28
[FORM OF CLASS EI CERTIFICATE]
THIS CLASS EI CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PERCENTAGE INTEREST OF THIS CLASS EI CAPMARK MASTER SERVICER: CAPMARK
CERTIFICATE: 100% FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. EI -1
CLASS EI CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Centerline High Yield CMBS Fund III LLC is the
registered owner of the interest evidenced by this Certificate in the Class EI
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the Capmark Master
Servicer, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General
Special Servicer and the Co-op Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
EI Certificates specified on the face hereof. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Class EI Certificate represents a beneficial ownership interest in a
portion of the Trust that is treated as grantor trust for federal income tax
purposes, and represents a beneficial ownership of Excess Interest in respect of
Mortgage Loans having a hyper-amortization feature. Any amount of Excess
Interest on deposit in the Excess Interest Sub-account for the related
Collection Period will be paid to the holders of the Class EI Certificates, to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the fourth business day following the 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"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS EI CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-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 UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-I
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE
THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PERCENTAGE INTEREST OF THIS CLASS R-I CAPMARK MASTER SERVICER: CAPMARK
CERTIFICATE: 100% FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
No. R-I-I
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class R-I
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the Capmark Master
Servicer, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General
Special Servicer and the Co-op Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including as
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the fourth business day following the 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"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-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 UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-II
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE
THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED TAX STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-II
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PERCENTAGE INTEREST OF THIS CLASS R-II CAPMARK MASTER SERVICER: CAPMARK
CERTIFICATE: 100% FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. R-II-I
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class R-II
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the Capmark Master
Servicer, the Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General
Special Servicer and the Co-op Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the fourth business day following the 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"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-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 UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND
BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET
FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF
ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD
OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM THIS CLASS R-III CERTIFICATE IS
ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE
MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED
STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
PERCENTAGE INTEREST OF THIS CLASS R-III CAPMARK MASTER SERVICER: CAPMARK
CERTIFICATE: 100% FINANCE INC.
DATE OF POOLING AND SERVICING XXXXX FARGO MASTER SERVICER: XXXXX
AGREEMENT: AS OF NOVEMBER 1, 2007 FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2007 NCB MASTER SERVICER: NCB, FSB
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, GENERAL SPECIAL SERVICER: CENTERLINE
2007 SERVICING INC.
PAYING AGENT: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
No. R-III-I
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class
R-III Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the fourth business day following the 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"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser may treat the
Person in whose name this Certificate is registered as of the related Record
Date as the owner hereof for the purpose of receiving distributions as provided
in the Pooling and Servicing Agreement and for all other purposes whatsoever,
and none of the Trustee, the Paying Agent, the Capmark Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: November 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-32
[FORM OF CLASS X-1 CERTIFICATE]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 0.061% CAPMARK MASTER SERVICER: CAPMARK
FINANCE, INC.
INITIAL NOTIONAL AMOUNT OF THIS XXXXX FARGO MASTER SERVICER: XXXXX
CLASS X-1 CERTIFICATE: [$500,000,000] FARGO BANK, NATIONAL ASSOCIATION
[$500,000,000] [$500,000,000]
[$500,000,000] [$500,000,000]
[$95,830,781], AS OF THE CLOSING
DATE
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF NOVEMBER 1, 2007
CUT-OFF DATE: NOVEMBER 1, 2007 GENERAL SPECIAL SERVICER: CENTERLINE
SERVICING, INC.
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, PAYING AGENT: XXXXX FARGO BANK,
2007 NATIONAL ASSOCIATION
AGGREGATE NOTIONAL AMOUNT OF THE CLASS TRUSTEE: LASALLE BANK NATIONAL
X-1 CERTIFICATES AS OF THE CLOSING ASSOCIATION
DATE: $2,595,830,781
No. X-1-[1][2][3][4][5][6] CUSIP NO. [U61784 AA9](1) [61756U
AK7](2)
CLASS X-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 X-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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-1 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the fourth Business Day
following the 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"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Certificate Registrar, the
Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer, and the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the Certificate Registrar, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, and the Co-op
Special Servicer or the Operating Adviser shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: NOVEMBER 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-33
[FORM OF CLASS X-2 CERTIFICATE]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
INTHE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE CAPMARK MASTER SERVICER, THE XXXXX FARGO MASTER
SERVICER, THE NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
INITIAL PASS-THROUGH RATE: 0.273% CAPMARK MASTER SERVICER: CAPMARK
FINANCE, INC.
INITIAL NOTIONAL AMOUNT OF THIS CLASS XXXXX FARGO MASTER SERVICER: XXXXX
X-2 CERTIFICATE: [$500,000,000] FARGO BANK, NATIONAL ASSOCIATION
[$5000,000,000] [$500,000,000]
[$500,000,000] [$500,000,000]
[$29,846,000], AS OF THE CLOSING DATE
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF NOVEMBER 1, 2007
CUT-OFF DATE: NOVEMBER 1, 2007 GENERAL SPECIAL SERVICER: CENTERLINE
SERVICING, INC.
CLOSING DATE: NOVEMBER 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: DECEMBER 14, PAYING AGENT: XXXXX FARGO BANK,
2007 NATIONAL ASSOCIATION
AGGREGATE NOTIONAL AMOUNT OF THE CLASS TRUSTEE: LASALLE BANK NATIONAL
X-2 CERTIFICATES AS OF THE CLOSING ASSOCIATION
DATE: $2,529,846,000
No. X-2-[1][2][3][4][5][6] CUSIP NO. [U61784 AB7](1) [61756U
AL5](2)
CLASS X-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 X-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 Capmark Master Servicer, the Xxxxx
Fargo Master Servicer, the NCB Master Servicer, the General Special Servicer and
the Co-op Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-2 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the fourth Business Day
following the 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"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the Certificate Registrar, the
Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer, and the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the Certificate Registrar, the Capmark Master Servicer, the Xxxxx Fargo Master
Servicer, the NCB Master Servicer, the General Special Servicer, and the Co-op
Special Servicer or the Operating Adviser shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC Regular Certificateholders, the Floating Rate Certificateholders and Class
EI Certificates, as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to
Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d) of the Pooling
and Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:____________________________________
AUTHORIZED SIGNATORY
Dated: Dated: NOVEMBER 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT...........Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship and Act...................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
_________________________________________
| PLEASE INSERT SOCIAL SECURITY OR
________________________________________| OTHER IDENTIFYING NUMBER OF
| ASSIGNEE
________________________________________|
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
_________________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
Dated: November __, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding II, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Royal Bank of Canada
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
General Electric Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NCB, FSB (as a Seller)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-00
Xxxxxxxx, Xxxx 00000
National City Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Capmark Finance Inc.
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
NCB, FSB (as NCB Master Servicer)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
National Consumer Cooperative Bank (as Co-op Special Servicer)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Centerline Servicing Inc.
0000 X. X'Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16
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 Custodian makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any such
documents contained in each Mortgage File are appropriate for their represented
purposes, or are other than what they purport to be on their face.
The Custodian acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests and the assets of Class EI
Grantor Trust, and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement. This Certificate is subject in all respects to the terms of said
Pooling and Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Custodian
By:____________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF CUSTODIAN
Dated: November __, 2007
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding II, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Royal Bank of Canada
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
General Electric Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NCB, FSB (as a Seller)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-00
Xxxxxxxx, Xxxx 00000
National City Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Capmark Finance Inc.
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
NCB, FSB (as NCB Master Servicer)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
National Consumer Cooperative Bank (as Co-op Special Servicer)
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Centerline Servicing Inc.
0000 X. X'Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (vi), (viii) and (xii) of the definition of "Mortgage File" required to be
in the Mortgage File, and any documents required to be included in the Mortgage
File pursuant to all other clauses of the definition of "Mortgage File" (to the
extent required to be delivered pursuant to the Pooling and Servicing Agreement
and any applicable Primary Servicing Agreement), to the extent actually known by
a Responsible Officer of the Custodian to be required pursuant to the Pooling
and Servicing Agreement (assuming that, with respect to the documents referred
to in clause (xii) of the definition of Mortgage File, an original letter of
credit in the possession of the Trustee is not so required, unless a Responsible
Officer of the Custodian has actual knowledge to the contrary), are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the Mortgage Note and the Mortgage or the appraisal of the
related Mortgaged Property, the street address of the Mortgaged Property set
forth in the Mortgage Loan Schedule accurately reflects the information
contained in the documents in the Mortgage File, and (d) each Mortgage Note has
been endorsed as required by the terms of the Pooling and Servicing Agreement.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained in
each Mortgage File identified in the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any of the documents contained in each Mortgage File are
appropriate for their represented purposes, or are other than what they purport
to be on their face or are in recordable form.
The Custodian acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests and the assets of Class EI
Grantor Trust, and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Custodian
By:____________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
Dated: [Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services -- Xxxxxx Xxxxxxx
Capital I Inc., Series 2007-IQ16
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16
In connection with the administration of the Mortgage File held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of November 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark Finance Inc., as
master servicer with respect to the MSMCH Loans, the GECC Loans, the PCFII Loans
and the NatCity Loans (the "Capmark Master Servicer"), Xxxxx Fargo Bank,
National Association, as master servicer with respect to the RBC Loans and the
Nationwide Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master Servicer"),
National Consumer Cooperative Bank, as special servicer with respect to the
residential cooperative Mortgage Loans sold to the Depositor by NCB, FSB (the
"Co-op Special Servicer"), Centerline Servicing Inc., as special servicer with
respect to the Mortgage Loans other than the residential cooperative Mortgage
Loans sold to the Depositor by NCB, FSB (the "General Special Servicer"),
LaSalle Bank National Association, as trustee and custodian (the "Trustee" and
the "Custodian," respectively) and Xxxxx Fargo Bank, National Association, as
paying agent, certificate registrar and authenticating agent (the "Paying
Agent," "Certificate Registrar" and "Authenticating Agent," respectively), the
undersigned as a [Master][Special] Servicer hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Custodian with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
(Such [Master] [Special] Servicer hereby certifies that all amounts received
in connection with ______________ the Mortgage Loan have been or will be,
following such [Master] [Special] Servicer's release ______________ of the
Custodian Mortgage File, credited to the Certificate Account or the Distribution
Account ______________ pursuant to the Pooling and Servicing Agreement.)
______ 2. Mortgage Loan repurchased.
(Such [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
______ 3. Mortgage Loan Defeased.
______ 4. Mortgage Loan substituted.
(Such [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Custodian Mortgage
File pursuant to the Pooling and Servicing Agreement.)
______ 5. The Mortgage Loan is being foreclosed.
______ 6. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[Name of applicable [Master] [Special]
Servicer]
By:____________________________________
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS TO DEFINITIVE PRIVATELY OFFERED CERTIFICATES
Dated: [Date]
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Class [__] (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Certificates [having an initial Certificate Balance or Notional Amount
as of November 29, 2007 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark
Finance Inc., as master servicer with respect to the MSMCH Loans, the GECC
Loans, the PCFII Loans and the NatCity Loans (the "Capmark Master Servicer"),
Xxxxx Fargo Bank, National Association, as master servicer with respect to the
RBC Loans and the Nationwide Loans (the "Xxxxx Fargo Master Servicer"), NCB,
FSB, as master servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer with respect
to the residential cooperative Mortgage Loans sold to the Depositor by NCB, FSB
(the "Co-op Special Servicer"), Centerline Servicing Inc., as special servicer
with respect to the Mortgage Loans other than the residential cooperative
Mortgage Loans sold to the Depositor by NCB, FSB (the "General Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee" and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent
(the "Paying Agent," "Certificate Registrar" and "Authenticating Agent,"
respectively). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation by means of
general advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred Certificate
pursuant to the Securities Act or any state securities laws.
Very truly yours,
____________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
Dated: [Date]
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue, MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of November 29, 2007 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of November 1,
2007 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Capmark Finance Inc., as master servicer
with respect to the MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity
Loans (the "Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide Loans (the
"Xxxxx Fargo Master Servicer"), NCB, FSB, as master servicer with respect to the
NCB, FSB Loans (the "NCB Master Servicer"), National Consumer Cooperative Bank,
as special servicer with respect to the residential cooperative Mortgage Loans
sold to the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage Loans other
than the residential cooperative Mortgage Loans sold to the Depositor by NCB,
FSB (the "General Special Servicer"), LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and the "Custodian," respectively) and
Xxxxx Fargo Bank, National Association, as paying agent, certificate registrar
and authenticating agent (the "Paying Agent," "Certificate Registrar" and
"Authenticating Agent," respectively). All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
Very truly yours,
____________________________________
(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 U.S. Bank National Association, as Certificate Registrar, with
respect to the commercial mortgage pass-through certificate being transferred
(the "Transferred Certificate") as described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) the Transferee owned and/or invested on a
discretionary basis $____________________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with
Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement income Security
Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
-------------------------------------------
-------------------------------------------
-------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect
to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned,
consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificate will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
____________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and U.S. Bank National Association, as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales
to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
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
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
Dated: [Date]
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue, MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ________________________ (the
"Transferee") of Class ___ Certificates [having an initial Certificate Principal
Balance as of November 29, 2007 (the "Closing Date") of $__________][evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of November 1,
2007 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Capmark Finance Inc., as master servicer
with respect to the MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity
Loans (the "Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide Loans (the
"Xxxxx Fargo Master Servicer"), NCB, FSB, as master servicer with respect to the
NCB, FSB Loans (the "NCB Master Servicer"), National Consumer Cooperative Bank,
as special servicer with respect to the residential cooperative Mortgage Loans
sold to the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage Loans other
than the residential cooperative Mortgage Loans sold to the Depositor by NCB,
FSB (the "General Special Servicer"), LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and the "Custodian," respectively) and
Xxxxx Fargo Bank, National Association, as paying agent, certificate registrar
and authenticating agent (the "Paying Agent," "Certificate Registrar" and
"Authenticating Agent," respectively). All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Class of Certificates to which the Transferred Certificates belong, and
(c) no Transferred Certificate may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant any applicable state securities laws or (ii) sold or transferred
in transactions which are exempt from such registration and qualification
and the Certificate Registrar has received either: (A) a certificate from
the Certificateholder desiring to effect such transfer substantially in
the form attached as Exhibit D-1 to the Pooling and Servicing Agreement
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit
D-2B to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the availability
of such exemption from registration under the Securities Act, together
with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Certificate or any other similar security with any person
in any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security, which (in the case of any of
the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any Person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
7. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks
of an investment in the Transferred Certificate; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision; and the Transferee is able to bear
the economic risks of such investment and can afford a complete loss of
such investment.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
Dated: [Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of November 29, 2007 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the "Capmark
Master Servicer"), Xxxxx Fargo Bank, National Association, as master servicer
with respect to the RBC Loans and the Nationwide Loans (the "Xxxxx Fargo Master
Servicer"), NCB, FSB, as master servicer with respect to the NCB, FSB Loans (the
"NCB Master Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to the Depositor
by NCB, FSB (the "Co-op Special Servicer"), Centerline Servicing Inc., as
special servicer with respect to the Mortgage Loans other than the residential
cooperative Mortgage Loans sold to the Depositor by NCB, FSB (the "General
Special Servicer"), LaSalle Bank National Association, as trustee and custodian
(the "Trustee" and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent
(the "Paying Agent," "Certificate Registrar" and "Authenticating Agent,"
respectively). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor,
the Certificate Registrar and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and
the Certificate Owner desiring to effect such transfer has received either
(A) a certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel with respect to the availability of such exemption,
together with copies of the certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate, any interest in any Certificate
or any similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Certificates; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
Dated: [Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of November 29, 2007 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the "Capmark
Master Servicer"), Xxxxx Fargo Bank, National Association, as master servicer
with respect to the RBC Loans and the Nationwide Loans (the "Xxxxx Fargo Master
Servicer"), NCB, FSB, as master servicer with respect to the NCB, FSB Loans (the
"NCB Master Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to the Depositor
by NCB, FSB (the "Co-op Special Servicer"), Centerline Servicing Inc., as
special servicer with respect to the Mortgage Loans other than the residential
cooperative Mortgage Loans sold to the Depositor by NCB, FSB (the "General
Special Servicer"), LaSalle Bank National Association, as trustee and custodian
(the "Trustee" and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent
(the "Paying Agent," "Certificate Registrar" and "Authenticating Agent,"
respectively). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor,
the Certificate Registrar and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate or any interest therein may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws
or (ii) sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to
effect such transfer has received either (A) a certification from such
Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel with respect to the
availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and U.S. Bank National Association, as Certificate Registrar,
with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) the Transferee owned and/or invested on a
discretionary basis $____________________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with
Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement income Security
Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
-------------------------------------------
-------------------------------------------
-------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect
to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned,
consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificate will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales
to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
for the Yes No 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
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Transferee
other than (i) a Disqualified Organization, (ii) a United States Tax Person with
respect to whom income from a Residual Certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Tax Person or (iii)
a United States Tax Person treated as a partnership for federal income tax
purposes, any partner of which, directly or indirectly (except through a U.S.
corporation), is not (and is not required to be under the related partnership
agreement) a United States Tax Person.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (F) of Section 3.3(e) which
authorizes the Paying Agent to deliver payments on the Residual Certificate to a
Person other than the Transferee and clause (G) of Section 3.3(e) which
authorizes the Certificate Registrar to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit E-2 to the Pooling and Servicing
Agreement in which it will represent and warrant, among other things, that it is
not transferring the Residual Certificates to impede the assessment or
collection of any tax and that it has at the time of such transfer conducted a
reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a United States Tax Person. For this purpose, a
United States Tax Person is a citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United States or
any state thereof or the District of Columbia including any entity treated as
such a corporation or partnership for federal income tax purposes, (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States Tax Persons has the authority to control
all substantial decisions of such trust (or to the extent provided in applicable
Treasury Regulations, a trust in existence on August 20, 1996, which is eligible
to be treated as a United States Tax Person).
13. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
United States Tax Person.
14. Check the applicable paragraph:
[_] The present value of the anticipated tax liabilities associated
with holding the Residual Certificate, as applicable, does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to pay tax at
the highest rate currently specified in Section 11(b) of the Code (but the tax
rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Transferee.
[_] That the transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from the Residual Certificate will only be taxed in the United
States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the Transferee determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ___________, ____.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
Dated: _______________, 20__
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue, MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16, Class [__] (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class [R-I] [R-II] [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 November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Capmark
Finance Inc., as master servicer with respect to the MSMCH Loans, the GECC
Loans, the PCFII Loans and the NatCity Loans (the "Capmark Master Servicer"),
Xxxxx Fargo Bank, National Association, as master servicer with respect to the
RBC Loans and the Nationwide Loans (the "Xxxxx Fargo Master Servicer"), NCB,
FSB, as master servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer with respect
to the residential cooperative Mortgage Loans sold to the Depositor by NCB, FSB
(the "Co-op Special Servicer"), Centerline Servicing Inc., as special servicer
with respect to the Mortgage Loans other than the residential cooperative
Mortgage Loans sold to the Depositor by NCB, FSB (the "General Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee" and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent
(the "Paying Agent," "Certificate Registrar" and "Authenticating Agent,"
respectively). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
4. The Transferor does not know and has no reason to know that (i) any of
the statements made by the Transferee under the Transfer Affidavit are false or
(ii) the Transferee will not honor the restrictions on subsequent transfers by
the Transferee under the Transfer Affidavit and Agreement, delivered in
connection with this transfer.
Very truly yours,
____________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REGULATION S CERTIFICATES
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16, Class __ (the "Certificates")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Banking, societe anonyme
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non-U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 20[__]
By:
--------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G
[Reserved]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
Dated: __________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Capmark Finance Inc., as Capmark Master Servicer
Xxxxx Fargo Bank, National Association, as Xxxxx Fargo Master Servicer
NCB, FSB, as NCB Master Servicer
Centerline Servicing Inc., as General Special Servicer
National Consumer Cooperative Bank, as Co-op Special Servicer
LaSalle Bank National Association, as Trustee and Custodian
Xxxxx Fargo Bank, National Association, as Paying Agent, Certificate
Registrar and Authenticating Agent
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-IQ16, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer ID No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate(1) for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess
thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:____________________________________
[Name], [Chief Financial
or other Executive Officer]
-----------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16, Class ____ (the "Certificates")
TO: Xxxxx Fargo Bank, National Association, as Certificate Registrar
Attention: Corporate Trust Services (CMBS)
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
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 November 1, 2007 (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., Capmark Finance Inc.,
Xxxxx Fargo Bank, National Association, NCB, FSB, Centerline Servicing Inc.,
National Consumer Cooperative Bank, LaSalle Bank National Association, and Xxxxx
Fargo Bank, National Association, U.S. $__________ principal amount of the
above-captioned Certificates held by us or on our behalf are beneficially owned
by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Certificates
in transactions that did not require registration under the United States
Securities Act of 1933, as amended (the "Securities Act"). As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Securities Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class __
Regulation S Temporary Global Certificate shall be exchanged for an interest in
the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global Certificate: We
hereby agree to hold (and return to the Trustee upon request) any payments
received by us on the Class __ Regulation S Temporary Global Certificate (as
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CLEARSTREAM BANK, S.A.]
By:____________________________________
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
(To the applicable Master Servicer or Primary Servicer)
See mortgage loan schedule
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I
(MSMCH)
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMCH LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
(successor to Xxxxxx Xxxxxxx Mortgage Capital Inc.) (the "Seller"), and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S] Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $1,260,267,256. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the applicable Master Servicer receives notice
of a defeasance request with respect to a Mortgage Loan originated or acquired
by the Seller and subject to defeasance, the applicable Master Servicer shall
provide upon receipt of such notice, written notice of such defeasance request
to the Seller or its assignee. Until such time as the Seller provides written
notice to the contrary, notice of a defeasance of a Mortgage Loan with Seller
Defeasance Rights and Obligations shall be delivered to the Seller pursuant to
the notice provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
as of November 29, 2007, will be executed by the Seller and the applicable
Master Servicer, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing Agreement. In
connection with such transfer and assignment, the Seller shall deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause (a) below) for each
Mortgage Loan and on or prior to the fifth Business Day after the Closing Date,
five limited powers of attorney substantially in the form attached hereto as
Exhibit 4 in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, the applicable Master
Servicer and, in the event of the failure or incapacity of the Trustee and the
applicable Master Servicer, the applicable Special Servicer, to submit for
recording, at the expense of the Seller, any mortgage loan documents required to
be recorded as described in the Pooling and Servicing Agreement and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files (so long as original counterparts have
previously been delivered to the Trustee). The Seller agrees to reasonably
cooperate with the Trustee, the applicable Master Servicer and the applicable
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the Seller, but in no event earlier than 18 months
from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the Seller's expense, after the periods set forth
above; provided, however, the Trustee shall not submit such assignments for
recording if the Seller produces evidence that it has sent any such assignment
for recording and certifies that the Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, the Seller shall deliver to the Custodian on behalf of the
Trustee each of the remaining documents or instruments specified below (with
such exceptions and additional time periods as are permitted by this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The Seller
acknowledges that the term "without recourse" does not modify the duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "LaSalle Bank National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Custodian on behalf of the Trustee or the agents of
either may submit or cause to be submitted for recordation at the expense of the
Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust after such transfer, and inform
such issuing bank that any notices to the Mortgagor's lender pursuant to such
letter of credit should thereafter be forwarded to the Master Servicer, and use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement of the above notice by
the bank (with a copy of such acknowledgement to be sent to the Custodian on
behalf of the Trustee) or a reissued letter of credit. After the Closing Date,
with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of the applicable Master Servicer or the
applicable Primary Servicer, the Seller will draw on such letter of credit as
directed by the Master Servicer or such Primary Servicer in such notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the applicable Master Servicer and satisfy Seller's obligations
under this sub-paragraph. Each of the foregoing items shall be delivered by the
Seller in electronic form, to the extent such document is available in such form
and such form is reasonably acceptable to the applicable Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. The Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency to examine and audit all books, records and files pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and shall not be conducted in a
manner that is disruptive to the Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations and audits,
the Seller will make available to such representatives of any of the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Custodian, the
applicable Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Mortgage Loans and the
terms of this Agreement, and the Seller shall cooperate fully with any such
examination and audit in all material respects. On or prior to the Closing Date,
the Seller shall provide the Purchaser with all material information regarding
the Seller's financial condition and access to knowledgeable financial or
accounting officers for the purpose of answering questions with respect to the
Seller's financial condition, financial statements as provided to the Purchaser
or other developments affecting the Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting the Seller in any
material respect. Within 45 days after the Closing Date, the Seller shall
provide the applicable Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the applicable Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
limited liability company in good standing under the laws of New York. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's organizational documents, (B) any term or
provision of any material agreement, contract, instrument or indenture to
which the Seller is a party or by which it or any of its assets is bound
or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to
this Agreement, or (C) after giving effect to the consents or taking of
the actions contemplated in subsection (iii), any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Seller or its assets, except where
in any of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien, charge
or encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of November
15, 2007, between the Seller, the Purchaser, the Underwriters and the
Initial Purchaser (the "Indemnification Agreement")) contained in the
Disclosure Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement as of the Time of Sale (as
defined in the Indemnification Agreement) (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) (other than the Memorandum)
complies with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Custodian on behalf of the Trustee pursuant to Section 2
is not delivered as and when required (and including the expiration of any grace
or cure period), is not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the applicable Master Servicer as to whether either of the conditions set
forth above has been satisfied shall be conclusive and binding in the absence of
manifest error. The applicable Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the applicable Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or the applicable Special Servicer, as
applicable, shall be required to notify the Seller of the discovery of the
Material Document Defect or Material Breach and the Seller shall be required to
follow the procedures set forth in this Agreement to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's organizational
documents.
(d) A certificate of existence for the Seller from the Secretary of
State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has full
organizational power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitutes a default
under, the organizational documents of the Seller, (B) to the knowledge of
such counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it or any of its assets is bound or results in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract
or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities
under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate and limited liability company laws of the State of Delaware and
the State of New York, as applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
3.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxx Xxxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation, limited liability company or other form of company resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to the entire business of the Seller shall be the successor to
the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXX XXXXXXX MORTGAGE
CAPITAL HOLDINGS LLC
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
Mortgage Loan No. Mortgage Loan Seller(1) Property Name(2)
----------------- ----------------------- -------------------------------------------------------------------------------------
3 XXXXX Xxxxxx Town Center
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 120 Longs Pond Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 7004 East Xxxxx Avenue (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxx Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxx Xxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 10211 North I-35 Service Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 7598 NW 6th Avenue (I)
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1500 NC Hwy 39 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 28001 Xxxxxx Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxx Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 12301 Cumberland Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1899 North US Hwy 1 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 00xx Xxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxxxxxx Xxxxxx X.X. Xxx 000 (I)
5 MSMCH USFS Industrial Distribution Portfolio - W137 N9245 Highway 45 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 111 Alliant Drive (I)
5 MSMCH USFS Industrial Distribution Portfolio - 755 Xxxxxx Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 40 Fort Xxxxx Boulevard (I)
5 MSMCH USFS Industrial Distribution Portfolio - 8000 Bavaria Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 10410 South 50th Place (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1 Quality Lane (I)
5 MSMCH USFS Industrial Distribution Portfolio - 2850 Selma Highway (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1350/1400 North 10th Street (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1044/1045 Garden Street (I)
5 MSMCH USFS Industrial Distribution Portfolio - 4601 32nd Avenue South (I)
5 MSMCH USFS Industrial Distribution Portfolio - 5353 Xxxxxx Xxxx North (I)
5 MSMCH USFS Industrial Distribution Portfolio - 125 Gardenville Parkway West (I)
5 MSMCH USFS Industrial Distribution Portfolio - 6315 Xxxx X Xxxxxxxx Drive (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000-000 Xxxxx Xxxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxx Xxxxx (I)
6 MSMCH Wyvernwood Garden Apartments
8 MSMCH Milford Crossing
11 MSMCH Solana Beach Corporate Center III & IV
13 MSMCH Amalfi Hotel
15 MSMCH 20770-20810 Xxxxxxx Xxxxxx
00 MSMCH Centerpoint Medical Office Building
18 MSMCH Banner Bank Building
20 MSMCH Art Institute Student Housing
24 MSMCH Archview Apartments
25 MSMCH Exeter Portfolio - 0000 Xxxxx Xxxxx Xxxxxxxxx (II)
25 MSMCH Exeter Portfolio - 000 Xxxxxxxxxxx Xxxxx (II)
25 MSMCH Exeter Portfolio - 00000 Xxxxxxxx Xxxxx (II)
26 MSMCH Varsity Apartments
27 XXXXX Xxxxxxx / Xxxxxx Buildings
28 MSMCH Cotton Corporate Center Flex
29 MSMCH Cotton Corporate Center Xxxxxx
00 XXXXX XXXX Xxxxxxxxx - Xxxxxx (XXX)
30 MSMCH SROA Portfolio - Danville (III)
30 MSMCH SROA Portfolio - Paintsville (III)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxxx (XXX)
30 MSMCH SROA Portfolio - Winchester 2 (III)
30 MSMCH SROA Portfolio - Mt. Sterling (III)
30 MSMCH SROA Portfolio - Lawrenceburg (III)
30 MSMCH SROA Portfolio - Wheelersburg, Duis Street (III)
30 MSMCH SROA Portfolio - Morehead (III)
30 MSMCH SROA Portfolio - Winchester I (III)
30 MSMCH SROA Portfolio - Berea (III)
30 MSMCH SROA Portfolio - Xxxxx Xxxx (III)
30 MSMCH SROA Portfolio - Xxxxxxx Xxxxxx (III)
30 MSMCH SROA Portfolio - Xxxxxxx Storage (III)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxx (XXX)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxxxxxxxx, Xxxx River Road (III)
30 MSMCH SROA Portfolio - Salyersville (III)
30 MSMCH SROA Portfolio - Greenwich (III)
30 MSMCH SROA Portfolio - West Liberty, Main Street (III)
30 MSMCH SROA Portfolio - West Liberty, Xxxxx Avenue (III)
30 MSMCH SROA Portfolio - Whitesburg (III)
30 MSMCH SROA Portfolio - All in One (III)
32 MSMCH Bank of America - 00 Xxxx 00xx Xxxxxx
33 MSMCH Northport Industrial Center
35 MSMCH Plaza on the Green
36 MSMCH West Lafayette Multifamily Portfolio
37 MSMCH Kmart Portfolio - Ukiah Home Depot (IV)
37 MSMCH Kmart Portfolio - Xxxx Kmart (IV)
37 MSMCH Kmart Portfolio - Riverside Kmart (IV)
38 XXXXX Xxxxxxxx Plaza - Magnolia Avenue
39 MSMCH 00000 Xxxxxxxxxxxx Xxxxxxx
48 MSMCH Indiana and Purdue Multicampus Student Housing Portfolio - Purdue (VII)
48 MSMCH Indiana and Purdue Multicampus Student Housing Portfolio - Indiana (VII)
50 MSMCH 0000 00xx Xxxxxx XX
52 MSMCH Ridgewood Commons
55 MSMCH Plaza 7-21
57 MSMCH Regency Apartments
61 MSMCH Hacienda Crossing
62 MSMCH Peninsula Corporate Center
64 MSMCH Lafayette Center
67 XXXXX Xxxxxxx Inn & Suites - Ft. Xxxxx
69 MSMCH Stoneridge Medical Center
70 MSMCH Suburban Court
71 MSMCH 0000 X Xxxxxx XX
72 MSMCH Crestview Eastern Milestone Portfolio - Shoppes at Milestone (IX)
72 MSMCH Crestview Eastern Milestone Portfolio - Crestview (IX)
00 XXXXX Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxxxx Xxxxxx (IX)
74 XXXXX Xxxxxxx Gateway
78 MSMCH Bolingbrook Transport Center
79 XXXXX Xxxxxxx-Xxxxxx Medical Clinic
80 MSMCH Ohio Portfolio - Atrium of Westlake (A)
81 MSMCH Ohio Portfolio - Rockwood Center Office Building (A)
82 XXXXX Xxxxxxxxxx Gateway
83 MSMCH 2-18 & 00 Xxxx 00xx Xxxxxx
89 MSMCH 951-953 Amsterdam Ave
90 MSMCH Studio City Center
00 XXXXX Xxxx Xxxxxx & Xxxxx Street Self Storage
94 MSMCH Dahlonega Portfolio - Mountain View Townhomes (XI)
94 MSMCH Dahlonega Portfolio - Riverside Duplexes (XI)
00 XXXXX Xxxxxxxxx Xxxxxxxxx - Xxxxxxxx Xxxxxxx (XI)
94 MSMCH Dahlonega Portfolio - Copper Creek Duplexes (XI)
94 MSMCH Dahlonega Portfolio - Creekside Duplexes (XI)
95 MSMCH Walgreens Plaza
97 MSMCH Holiday Inn & Suites Conference Center
99 XXXXX Xxxxxxx Inn - Seffner
100 MSMCH Walgreens - Canandaigua
102 MSMCH 10 Marketplace Shopping Center
103 MSMCH Walgreens - Brooklyn
107 XXXXX Xxxxxxxx Office
108 MSMCH Dakota Ridge II
112 MSMCH Oceanside Self Storage
113 MSMCH 0 Xxxxxx Xxxxxx
000 XXXXX Xxxx - Xxxxxx, XX I
117 MSMCH Clermont Shopping Center
119 MSMCH Cadillac Plaza
120 MSMCH Why Self Storage
000 XXXXX Xxxxxxxx Xxxxxxxxx Retail
122 XXXXX Xxxxxxxx Safeway
123 MSMCH Copelands Building
124 MSMCH Waterford Plaza
125 MSMCH Med Centre Shopping Center
126 MSMCH Brooklyn Centre
128 XXXXX Xxxx Place
129 MSMCH Shoppes at Forest Hill
130 MSMCH Fifth South Plaza
131 XXXXX Xxxxxxxxx Crossing
000 XXXXX Xxxxxxxxxx Xxxxxx Shops
134 XXXXX Xxxxxxx Park Shoppes II
137 MSMCH Spenceola Main Street Center
139 MSMCH Perimeter Park
140 MSMCH Kings Manor MHP
143 MSMCH Dover Crossing Shops
145 MSMCH Walgreens - Shelbyville
000 XXXXX Xxxx Xxxxxx at Canton
000 XXXXX XXXX Xxxxxxxx - Xxxxxxx Xxxxxxxxx
155 MSMCH Forest Hills Apartments
000 XXXXX Xxxxxxx Xxxxxx
000 XXXXX Xxxxxxxx Xxxxxx Xxxxxxx
160 MSMCH 00 Xxxxxx Xxxxxx
162 MSMCH ACRE Rutgers University Student Housing Portfolio
163 XXXXX Xxxxxx Square
165 MSMCH Rite Aid - Wooster
167 MSMCH 0000 Xxxxxxxx Xxxxxx
168 MSMCH Colony East Townhomes
169 MSMCH Katy Plaza
170 MSMCH 0 Xxxxxxx Xxxxx
172 MSMCH 0000 Xxxx Xxxx Xxxxxxxxx
173 MSMCH Parkchase Shopping Center
174 XXXXX Xxxxxxx Place
177 XXXXX Xxxxx River Shopping Center
179 MSMCH Florida City Commons
180 MSMCH 1523 - 0000 Xxxx Xxxxxx
183 XXXXX Xxxxxxx - Xxxxxx
184 MSMCH 000-000 Xxxx Xxxxxx, Xxxxxxxxxxx Xxxxx, XX
185 MSMCH Melrose Center Shops
186 MSMCH 00 Xxxxxx Xxx
000 XXXXX Xxxxx Retail Portfolio - Green Oaks (XIII)
000 XXXXX Xxxxx Retail Portfolio - Crossroads Center (XIII)
000 XXXXX Xxxxx Xxxxx Shops
192 MSMCH Dumbarton Building
194 MSMCH Victory View II
202 MSMCH Otay Mesa Parking Facility
000 XXXXX Xxxxxxxxxxx Xxxx Retail
206 XXXXX Xxxxxx Village Shopping Center
207 MSMCH AutoZone - NJ
210 XXXXX Xxxxxxx Industrial
211 MSMCH National Tire & Battery - St. Xxxxxxx
212 MSMCH Creekside Shops
213 XXXXX Xxxxxxxx KeyBank Building
214 MSMCH 615 Day Hill Road
216 XXXXX Xxxxxx Creek Shops
221 MSMCH Nantucket Tutto Sfoglia
223 MSMCH FedEx Building
231 MSMCH 00000 X. Xxxxxxxxxx, Xxxxx 000
Totals and
Weighted Averages:
Mortgage Loan No. Cut-Off Date Balance(3) Street Address
----------------- ----------------------- --------------------------------------------------------------------------------------
3 $110,000,000 000 Xxxxxx Xxxx Center
5 $8,621,250 00000 Xxxxxxx Xxxxxx
5 $5,272,500 000 Xxxxx Xxxx Xxxx
5 $4,503,000 0000 Xxxx Xxxxx Xxxxxx
5 $4,417,500 0000 Xxxx Xxxxxxxx Xxxxxx
5 $4,307,775 0000 Xxxxxxxxxxx Xxxx
5 $4,089,750 000 Xxxxxxxx Xxxxx
5 $3,964,350 0000 Xxxx Xxxxxxx Xxxx
5 $3,762,000 0000 Xxxxxxxxx Xxxx
5 $3,719,250 10211 North IH 35
5 $3,562,500 0000 XX 0xx Xxxxxx
5 $3,405,750 00000 Xxxxxxxxxx Xxxx
5 $3,184,875 0000 XX Xxxxxxx 39
5 $2,565,000 00000 Xxxxxx Xxxx
5 $2,436,750 00000 Xxxx Xxxxxxxx Xxxxxx
5 $2,351,250 00000 Xxxxxxxxxx Xxxx
5 $2,208,750 0000 Xxxxx XX Xxxxxxx 0
5 $2,137,500 0000 00xx Xxxxxx Xxxxx
5 $2,137,000 000-000 and 000-000 Xxxxxxxxx Xxxxxx
0 $2,023,500 West 000 X0000 Xxxxxxx 000
5 $1,923,750 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx
5 $1,881,000 000 Xxxxxxx Xxxxx
5 $1,681,500 000 Xxxxxx Xxxx
5 $1,681,500 00 Xxxx Xxxxx Xxxxxxxxx
5 $1,574,625 0000 Xxxxxxx Xxxx
5 $1,447,800 00000 Xxxxx 00xx Xxxxx
5 $1,382,250 0 Xxxxxxx Xxxx
5 $1,309,575 0000 Xxxxx Xxxxxxx
5 $1,130,025 0000 Xxxxxxxxx Xxxxx
5 $1,058,063 0000/0000 Xxxxx 00xx Xxxxxx
5 $1,034,550 0000/0000 Xxxxxx Xxxxxx
5 $1,008,188 0000 00xx Xxxxxx Xxxxx
5 $794,438 0000 Xxxxxx Xxxx North
5 $755,250 000 Xxxxxxxxxxx Xxxxxxx West
5 $612,750 0000 Xxxx X Xxxxxxxx Xxxxx
5 $548,625 0000 Xxxxxxxx Xxxxxx
5 $513,000 000-000 Xxxxx Xxxxxxxxx Xxxxxx
5 $513,000 0000 Xxxxxxxx Xxxxxx
5 $233,700 000 Xxxxx Xxxx Xxxxx
6 $86,000,000 0000 Xxxx Xxxxxxx Xxxxxxxxx
8 $75,500,000 0000 Xxxxxx Xxxx Xxxx
11 $37,330,000 420 & 000 Xxxxxxx Xxxxxx
13 $37,000,000 00 Xxxx Xxxxxx Xxxxxx
15 $36,250,000 20770-20810 Xxxxxxx Xxxxxx
00 $33,500,000 00000 Xxxx 00xx Xxxxxx
18 $26,150,000 000 Xxxx Xxxxxxx Xxxxxx
20 $25,885,000 000 Xxxxxx Xxxxxx
24 $22,100,000 0000 Xxxx Xxxxx
25 $13,200,000 0000 Xxxxx Xxxxx Xxxxxxxxx
25 $5,500,000 000 Xxxxxxxxxxx Xxxxx
25 $3,200,000 10641 - 10645 Xxxxxxxx Xxxxx
00 $21,775,000 0000-0000,1314,1316,1335-1345,1355,1365-1395,1555 X. Xxxxxxx; 301,305,216,218,218 1/2,
000,000 X.00xx Xxxxxx; 1332-1334,1336 X. Xxxxxxxxxx; 0000 Xxxxx Xxxx Xxxxxx;
0000 Xxxxx Xxxx Xxxxxx; 0000-0000 Xxxxx Xxxx Xxxxxx; 000 Xxxxxxx Xxxxx Xxxxx;
203-492 Varsity Lane
27 $20,170,000 0000 Xxxxxxx Xxxxxx; 0000 Xxxxxx Xxxxx
28 $20,050,000 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx
29 $20,000,000 0000 Xxxx Xxxxxx Xxxxxx Xxxx
30 $2,298,546 0000 Xxxxxx Xxxxxx
30 $2,078,938 000 Xxxxxxxxx Xxxxx
30 $2,078,938 000 Xxxxxx Xxxxxx Xxxx
30 $1,976,455 0000 Xxxxxxx Xxxxx
30 $1,639,726 0000 Xxxxxxx Xxxxx
30 $1,449,400 0000 Xxxxxxx Xxxx
30 $1,346,917 0000 Xxxxxxxx Xxx
30 $1,346,917 00 Xxxx Xxxxxx
30 $1,229,794 0000 Xxxxxxxxxxxx Xxxx
30 $819,863 0000 Xxxxxxxx Xxxx
30 $790,582 000 Xxxxxxx Xxxxx
30 $541,696 000 Xxxxxxxx Xxxxx 825
30 $474,349 000 X. Xxxxxx Xxxxxx
30 $427,500 000 Xxxx Xxxxxx Xxxxxx
30 $409,931 000 Xxxxxx Xxxx
30 $263,527 0000 Xxxx Xxxxx Xxxx
30 $219,606 0000 Xxxx Xxxxxxx Xxxxxxx
30 $163,973 00 Xxxx Xxxx Xxxxxx
30 $146,404 0000 Xxxx Xxxx Xxxxxx
30 $102,483 00 Xxxxx Xxxxxx
30 $102,483 00 Xxx Xxxxxxx Xxxxxx
30 $76,130 000 Xxxx Xxxxxx Xxxxxx
32 $18,000,000 00 Xxxx 00xx Xxxxxx
33 $17,200,000 Xxxxxxxxx Xxxx xxx Xxxxx Xxxxxx Xxxx
00 $15,000,000 0000 Xxxx Xxxxxxxxx Xxxxxx
36 $14,800,000 2501, 0000 Xxxxxxxx Xxxx Xxxx; 0000 Xxxxx Xxxxxx Xxxx
37 $6,950,342 000 Xxxxx Xxxxxxx Xxxxxx
37 $4,476,020 000 Xxxxxxx Xxxxx Xxxx
37 $2,474,322 000 Xxxx Xxxxxxxxxx Xxxxxxxxx
38 $13,650,000 10303-10357 Xxxxxxxx Xxxxxx
00 $13,211,942 00000 Xxxxxxxxxxxx Xxxxxxx
48 $9,229,500 000 Xxxxxxxxxxxx Xxxxxx; 000 Xxxx Xxxxxx; 20 Littleton / 120, 208, 218 Xxxxxxx /
340-344 Vine / 207 & 215 West Xxxxxx; 435, 000 Xxxxx Xxxxx Xxxxxx
48 $2,295,500 000 Xxxxxxx Xxxxx; 000 Xxxx 00xx Xx.
50 $10,944,802 0000 00xx Xxxxxx, XX
52 $10,120,000 00 X. Xxxxxxxxx Xxxxxx; 000-000 X. Xxxxx Xxxxxx Avenue
55 $10,000,000 000 Xxxx 0000 Xxxxx Xxxxxx
57 $9,962,497 0000 Xxxxxx Xxxx Xxxx
61 $9,500,000 0000 Xxxxx Xxxxxxx Xxxxxx
62 $9,500,000 000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
64 $9,200,000 000-000 Xxxxxx Xxxx Xxxxx
67 $8,725,833 00000 Xxxxxxxxx Xxxxxx Xxxx
69 $8,500,000 0000 Xxxxxx Xxxxxxxxx Xxxx
70 $8,480,000 107 & 000 Xxxxxxx Xxxxxx
71 $8,457,350 0000 X Xxxxxx XX
72 $2,900,000 0000 X. Xxxx Xxxx Xxxx
72 $2,750,000 0000 Xxxxxx Xxxxxxx (X.X. Xxxxxxx 78)
72 $2,688,000 30350 SR-181
74 $8,250,000 0000 Xxxxxxxx
78 $7,960,474 000 Xxxx Xxx Xxxxxxx Xxxxx
79 $7,856,311 0000 Xxxx Xxxxxxxx Xxxxxx
80 $5,545,191 00000 Xxxxxxx Xxxx
81 $2,173,115 0000 Xxxxxxxx Xxxx
82 $7,565,000 9366-9386 Xxxxxxxxxx Xxxx
00 $7,500,000 2-18 & 00 Xxxx 00xx Xxxxxx
89 $6,800,000 000-000 Xxxxxxxxx Xxxxxx
00 $6,800,000 11032-11056 Xxxxxxx Xxxxxxxxx
00 $6,486,435 0000 Xxxx Xxxxxx & 000 Xxxxx Xxxxxx
94 $1,947,327 00 - 00 Xxxxxxxx Xxxx Xxxxx Xxxx
94 $1,828,103 00 Xxxxxxxxx Xxxxxx
94 $1,490,302 000 - 000 Xxxxxxxx Xxxx Xx., 00 -83 Vista Court
94 $663,681 2, 16, 22, 38 & 00 Xxxxxx Xxxxx Xxxxx
94 $309,983 121 Xxxxxxx County Parkway
95 $6,200,000 0 Xxxxxxx Xxxxxx
97 $6,085,034 1051 Xxxxxx Xxxxxx Xxxx Xx. Xxxxx
00 $5,779,484 00000 Xxxxx Xxxxxxx Xxxxxxxxx
100 $5,720,000 00 Xxxxxxx Xxxxxxxxx
102 $5,673,010 0000 Xxxx 00xx Xxxxxx; 0000 Xxxxxx Xxxxxx
103 $5,640,000 0000-0000 Xxxxx Xxxxxx Xxxxxx
107 $5,350,000 000 Xxxxxxxxx Xxxx
108 $5,350,000 0000 Xxxxxx Xxxxx Xxxxx
112 $5,150,000 0000 Xxxxxxxxx Xxxxxxxxx
113 $5,120,271 0 Xxxxxx Xxxxxx
115 $5,050,000 Costco Way
117 $4,984,185 000-000 Xxxx X.X. 50
119 $4,900,000 14325-14397 Xxxxxx Road
120 $4,900,000 0 Xxxx Xxxxx Xxxxxx & 0 Xxxx Xxxxx Xxxxxx
121 $4,900,000 00000 X. 00xx Xxxxxx
122 $4,850,000 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx
123 $4,827,424 000 XX Xxxxxx Xxxxxx
124 $4,826,000 0000 Xxxxx Xxxxxxxx
125 $4,800,000 0000 Xxxxxxxx Xxxx
000 $4,782,543 0000-0000 Xxxx 00xx Xxxxxx
128 $4,650,000 0000 Xxxxxxx Xxxx Xxxxxxx
000 $4,625,000 0000 Xxxxxx Xxxx Xxxxxx
000 $4,500,000 000 Xxxx 000 Xxxxx
131 $4,378,977 00000 Xxx Xxx
132 $4,350,000 0000 Xxxxxxxxxx Xxxxxx
134 $4,200,000 0000 Xxxxx Xxxx
137 $4,100,000 000 - 000 Xxxxx Xxxx Xxxxxx
000 $4,000,000 8705 & 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
140 $4,000,000 0000 Xxxx Xxxxxxxx Xxxxxx
143 $3,887,288 0000 Xxxx Xxxxxxxx Xxxxxxxxx
145 $3,800,000 0000 Xxxx Xxxxx Xxxx 44
150 $3,628,671 0000 Xxxxxxxx Xxxxxxx
153 $3,500,000 0000-0000 Xxxxxxx Xxxxxxxxx
155 $3,490,884 0000 Xxxxxx Xxxxx
156 $3,450,000 0000-0000 Xxxx Xxxxxx
159 $3,400,000 0000 Xxxxx Xxxx Xxxx
000 $3,360,000 00 Xxxxxx Xxxxxx
000 $3,337,767 12, 59, 00 Xxxxxxxxxx Xxxxxx; 28, 62, 66, 00 Xxxxxx Xxxxxx; 00 Xxx Xxxxxx
163 $3,300,000 000 Xxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx (XX Route 522)
165 $3,291,527 0000 Xxxxxxxxx Xxxx
167 $3,200,000 0000 Xxxxxxxx Xxxxxx
168 $3,200,000 00 Xxxxxxx Xxxxx
169 $3,200,000 0000 Xxxxx Xxxx; 2050-2220 Katy Hockley Cut-Off
170 $3,188,500 0 Xxxxxxx Xxxxx
172 $3,089,591 0000 Xxxx Xxxx Xxxxxxxxx
173 $3,000,000 00000 Xxxxxxxx Xxxxxxxx Xxxxx
174 $3,000,000 000 Xxxxx Xxxxxx Xxxxxx
177 $2,975,000 0 Xxxxx Xxxx Xxxxx
000 $2,791,054 00000 Xxxxx Xxxxx Xxxxxxx
000 $2,789,409 1523 - 0000 Xxxx Xxxxxx
183 $2,620,000 0000 Xxxx 00xx Xxxxxx
184 $2,560,000 000-000 Xxxx Xxxxxx
185 $2,506,802 0000-0000 Xxxxxxxx Xxxx
186 $2,500,000 00 Xxxxxx Xxx
189 $1,490,000 0000-0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx
189 $913,500 00000 XxxXxxxxx Xxxxxxxxx
191 $2,352,307 0000-0000 Xxxxxxx 000
192 $2,300,000 0000 Xxxxxxx Xxxx Xxxx
000 $2,230,000 0000-0000 X. Xxxxxxxxx Xxx
202 $2,000,000 Various
203 $2,000,000 0000 Xxxxxxxxxxx Xxxx
206 $1,992,726 0000 Xxxxx Xxxx Xxxx
207 $1,950,000 000 Xxxxx Xxxx Xxxxxx
210 $1,938,325 231 & 000 Xxxxxx Xxxxxx
211 $1,934,554 0000 Xxxxxxxx Xxxxxx
212 $1,903,774 3940 - 0000 Xxxxxxxxxxx Xxxx
213 $1,867,869 00000 XX Xxxxxxxx Xxxxxxxxx
214 $1,740,000 000 Xxx Xxxx Xxxx
000 $1,709,410 000 Xxxx Xxxx Xxxxxx
221 $1,421,000 00X Xxxxxxxx Xxxxxx
223 $1,376,346 000 Xxxx Xxxx Xxxxx
000 $848,500 00000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Totals and
Weighted Averages: $1,260,267,256
Mortgage Loan No. City State Zip Code Cut-Off Date Balance per Unit or SF Note Date Maturity Date
----------------- ---------------------- ----- -------- ----------------------------------- ---------- -------------
3 Xxxxxxxx XX 00000 $215 07/25/2007 08/08/2017
5 Xx Xxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxx Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx Xxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxx Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxx Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
0 Xxxxxxxxx Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx Xxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxx Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxxxxx XX 00000 $52 07/03/2007 08/01/2017
5 Xxxxxx XX 00000 $52 07/03/2007 08/01/2017
6 Xxx Xxxxxxx XX 00000 $72,452 06/08/2007 06/08/2012
8 Xxxxxxx XX 00000 $199 10/09/2007 11/08/2017
11 Xxxxxx Xxxxx XX 00000 $322 07/12/2007 08/01/2017
13 Xxxxxxx XX 00000 $172,093 07/12/2007 08/08/2012
15 Xxxxxxxx XX 00000 $171 07/31/2007 08/08/2017
16 Xxxxxxxxxxxx XX 00000 $166 06/15/2007 07/01/2017
18 Xxxxx XX 00000 $146 05/18/2007 06/01/2017
20 Xxxxxxxxxx XX 00000 $39,823 07/20/2007 08/08/2017
24 Xxxxxx Xxxx XX 00000 $175,397 06/29/2007 07/01/2017
00 Xxxxxxxx Xxxxx XX 00000 $30 08/17/2007 09/08/2012
25 Xxxxxxxxxx XX 00000 $30 08/17/2007 09/08/2012
25 Xxxxxxxxxx XX 00000 $30 08/17/2007 09/08/2012
26 Xxxxxxxxxxx XX 00000 $80,948 08/10/2007 09/08/2017
27 Xxxxxx Xxxx XX 00000 $199 07/06/2007 08/01/2012
28 Phoenix - Xxxx XX 00000 $136 07/26/2007 08/08/2017
29 Phoenix - Xxxx XX 00000 $171 07/26/2007 08/08/2017
30 Xxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xx. Xxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxx XX 00000 $31 09/14/2007 10/08/2017
00 Xxxxx Xxxx/Xxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
00 Xxxx Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
00 Xxxx Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxxxxx XX 00000 $31 09/14/2007 10/08/2017
30 Xxxxxxx XX 00000 $31 09/14/2007 10/08/2017
32 Xxx Xxxx XX 00000 $3,553 04/18/2007 05/01/2017
33 Xxxxxxxxx XX 00000 $50 11/14/2006 12/01/2017
35 Xxxxxx XX 00000 $101 08/22/2007 09/08/2017
00 Xxxx Xxxxxxxxx XX 00000 $33,184 03/15/2007 04/01/2017
37 Xxxxx XX 00000 $47 02/27/2007 03/01/2017
37 Xxxx XX 00000 $47 02/27/2007 03/01/2017
37 Xxxxxxxxx XX 00000 $47 02/27/2007 03/01/2017
38 Xxxxxxxxx XX 00000 $217 07/31/2007 08/01/2017
39 Xxxx Xxxxx XX 00000 $41 07/19/2007 08/07/2017
00 Xxxx Xxxxxxxxx XX 00000 $84,743 07/16/2007 08/08/2017
48 Xxxxxxxxxxx XX 00000 $84,743 07/16/2007 08/08/2017
50 Xxxxxxxxxx XX 00000 $214 05/11/2007 06/01/2017
00 Xxxxx Xxxxxx XX 00000 $153,333 05/30/2007 06/07/2012
55 Xxxx Xxxx Xxxx XX 00000 $144 04/07/2006 05/01/2017
57 Xxxxxxxxxx XX 00000 $54,144 06/29/2007 07/01/2017
61 Xxx Xxxxx XX 00000 $128 07/27/2007 08/08/2017
62 Xxxx Xxxxx XX 00000 $207 07/31/2007 08/08/2017
00 Xxxxx Xxxxxxx Xxxxxxxx XX 00000 $220 04/25/2007 05/01/2017
67 Ft. Xxxxx Xxxxx XX 00000 $72,715 07/02/2007 08/01/2017
69 Xxxxxxxx XX 00000 $178 07/02/2007 08/01/2017
70 Xxxxxxx XX 00000 $84,800 06/12/2007 07/01/2017
71 Xxxxxxxxxx XX 00000 $203 05/11/2007 06/01/2017
72 Xxxxxxxxx XX 00000 $179 07/13/2007 08/08/2012
72 Xxxxxxxxxx XX 00000 $179 07/13/2007 08/08/2012
72 Spanish Xxxx XX 00000 $179 07/13/2007 08/08/2012
74 Xxxxxxx XX 00000 $259 06/11/2007 07/01/2017
78 Xxxxxxxxxxx XX 00000 $188 05/23/2007 06/01/2017
79 Xxxxxxxxxxx XX 00000 $45 07/05/2007 08/01/2017
80 Xxxxxxxx XX 00000 $85 09/19/2007 10/08/2017
81 Xxxxxxxxxxxx XX 00000 $85 09/19/2007 10/08/2017
82 Xxxxxxxxxx XX 00000 $189 02/28/2007 03/01/2017
83 Xxxxxxxx XX 00000 $64 10/11/2007 11/08/2017
89 Xxx Xxxx XX 00000 $194,286 08/20/2007 09/08/2017
90 Xxx Xxxxxxx XX 00000 $412 06/01/2007 07/01/2017
92 Xxxxxx Xxxx XX 00000 $52 08/31/2007 09/08/2017
94 Xxxxxxxxx XX 00000 $64,324 08/01/2007 08/08/2017
94 Xxxxxxxxx XX 00000 $64,324 08/01/2007 08/08/2017
94 Xxxxxxxxx XX 00000 $64,324 08/01/2007 08/08/2017
94 Xxxxxxxxx XX 00000 $64,324 08/01/2007 08/08/2017
94 Xxxxxxxxx XX 00000 $64,324 08/01/2007 08/08/2017
00 Xxxx Xxxxxxx XX 00000 $303 08/31/2007 09/08/2017
00 Xxxxxx XX 00000 $23,404 08/07/2007 09/08/2017
99 Xxxxxxx XX 00000 $77,060 07/24/2007 08/08/2017
000 Xxxxxxxxxxx XX 00000 $393 07/31/2007 08/08/2017
000 Xxxxxxxx XX 00000 $101 05/16/2007 06/01/2017
000 Xxxxxxxx XX 00000 $705 06/27/2007 07/01/2012
000 Xxxxxxxx Xxxx XX 00000 $195 07/17/2007 08/01/2017
000 Xxxxxxxxxxxx XX 00000 $66,875 08/31/2007 07/01/2015
112 Xxxxxxxxx XX 00000 $181 05/17/2007 06/01/2017
000 Xxxxxxxxx XX 00000 $175 08/07/2007 08/08/2017
000 Xxxxxx XX 00000 $21 12/27/2006 01/01/2018
000 Xxxxxxxx XX 00000 $114 06/12/2007 07/01/2012
000 Xxx Xxxxxxx XX 00000 $132 05/22/2007 06/01/2017
000 Xxxxxxxxx XX 00000 $60 06/29/2007 07/01/2017
000 Xxxxxxxx XX 00000 $293 12/28/2006 01/01/2018
000 Xxxxxxxx XX 00000 $173 08/27/2007 09/08/2017
123 Xxxxxxxx XX 00000 $193 10/19/2007 06/01/2017
000 Xxxxx XX 00000 $163 06/21/2007 07/01/2017
000 Xxx Xxxxxxx XX 00000 $108 08/24/2007 09/08/2017
000 Xxxxxxxxx XX 00000 $114 06/06/2007 07/01/2017
000 Xxxxxxxxxxx XX 00000 $284 05/17/2007 06/08/2017
000 Xxxxxxxx XX 00000 $352 07/17/2007 08/01/2017
130 Xxxxxxxxx XX 00000 $115 06/20/2006 07/09/2016
000 Xxxxxxxxxxx XX 00000 $363 05/31/2007 06/01/2017
000 Xxxxxxx XX 00000 $254 06/28/2007 07/01/2017
000 Xxxxxxx Xxxxx XX 00000 $253 02/02/2007 03/01/2017
000 Xxx Xxx XX 00000 $150 07/26/2007 08/08/2017
000 Xxxxxxxxxxxx XX 00000 $104 05/17/2007 06/01/2017
000 Xxxxxxxx XX 00000 $16,667 04/02/2007 05/01/2017
000 Xxxxxxxxxxx XX 00000 $135 06/14/2007 07/01/2017
145 Xxxxxxxxxxx XX 00000 $256 06/06/2007 07/01/2017
000 Xxxxxx XX 00000 $190 08/01/2007 09/01/2017
000 Xxxxxxx XX 00000 $512 08/03/2007 08/08/2017
000 Xxxxxxxxxx XX 00000 $51,337 07/25/2007 08/01/2017
000 Xxxxxxxx XX 00000 $122 05/31/2007 06/01/2017
000 Xxxxxxxx XX 00000 $50,000 06/15/2007 07/01/2012
000 Xxxxxxx XX 00000 $83 08/22/2007 09/08/2017
000 Xxx Xxxxxxxxx XX 00000 $278,147 08/03/2007 08/08/2017
000 Xxxxxxxx Xxxxxxx XX 00000 $58 08/08/2007 09/01/2017
000 Xxxxxxx XX 00000 $295 07/25/2007 08/08/2017
000 Xxxxxxx XX 00000 $228,571 07/19/2007 08/08/2017
000 Xxxxxxxxxx XX 00000 $38,095 05/30/2007 06/01/2017
000 Xxxx XX 00000 $89 06/29/2007 07/01/2017
000 Xxxxxxxxxxx XX 00000 $58 06/13/2007 07/01/2017
000 Xxxxxxxxxx XX 00000 $189 06/08/2007 07/01/2017
000 Xxxxxxx XX 00000 $62 08/30/2007 09/08/2017
000 Xxxxxxx XX 00000 $196 07/30/2007 08/08/2017
000 Xxxxx Xxxxx XX 00000 $79 07/20/2007 08/01/2017
179 Xxxxxxx Xxxx XX 00000 $171 06/15/2007 07/01/2017
000 Xxxxxxxx XX 00000 $90 07/11/2007 08/08/2017
000 Xxxxxx XX 00000 $109 07/26/2007 08/01/2017
000 Xxxxxxxxxxx Xxxxx XX 00000 $241 10/10/2007 11/08/2017
000 Xxxxxxxxx XX 00000 $142 06/14/2007 07/01/2017
000 Xxxxxxx XX 00000 $57 06/29/2007 07/01/2017
000 Xxxxxxxxx XX 00000 $78 05/08/2007 06/01/2017
000 Xxxxxx XX 00000 $78 05/08/2007 06/01/2017
000 Xxxxxxxxx XX 00000 $210 06/14/2007 07/01/2017
000 Xxxxxxxx XX 00000 $87 07/27/2007 08/08/2017
000 Xxxxx XX 00000 $68 07/09/2007 08/01/2017
000 Xxxx Xxxx XX 00000 $7 08/07/2007 08/08/2017
000 Xxxxxxx XX 00000 $222 07/05/2007 08/01/2017
206 Xxxxxxx XX 00000 $75 06/07/2007 07/01/2017
000 Xxxxx XX 00000 $264 06/14/2007 07/01/2017
000 Xxxxxx Xxxxxxxxx XX 00000 $56 07/25/2007 08/08/2017
000 Xx. Xxxxxxx XX 00000 $240 07/27/2007 08/08/2017
000 Xxxxxxxxx XX 00000 $129 06/14/2007 07/01/2017
000 Xxxxxxxx XX 00000 $321 06/06/2007 07/01/2017
000 Xxxxxxx XX 00000 $79 06/26/2007 07/01/2017
000 Xxxxxxxxxxxxxx XX 00000 $192 06/14/2007 07/01/2017
000 Xxxxxxxxx XX 00000 $684 06/29/2007 07/01/2017
000 Xxxxxxxxx XX 00000 $115 08/02/2007 08/08/2017
000 Xxxxxxxxxx XX 00000 $226 08/24/2007 09/08/2017
Totals and
Weighted Averages:
Mortgage Loan No. ARD Loan Original Term to Maturity Remaining Term to Maturity Original Amort. Term(9) Mortgage Rate
----------------- -------- ------------------------- -------------------------- ----------------------- -------------
3 No 120 117 IO 6.115%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
6 No 60 55 IO 6.050%
8 No 121 120 360 6.030%
11 No 120 117 360 6.388%
13 No 60 57 IO 6.510%
15 No 120 117 360 6.180%
16 No 120 116 360 5.690%
18 No 120 115 360 5.600%
20 No 120 117 360 6.140%
24 No 120 116 IO 5.580%
25 No 60 58 360 6.270%
25 No 60 58 360 6.270%
25 No 60 58 360 6.270%
26 No 120 118 360 6.270%
27 No 60 57 IO 6.480%
28 No 120 117 360 6.480%
29 No 120 117 360 6.580%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
32 Yes 120 114 360 5.705%
33 No 132 121 IO 5.850%
35 No 120 118 360 6.235%
36 No 120 113 360 5.800%
37 Yes 120 112 360 6.100%
37 Yes 120 112 360 6.100%
37 Yes 120 112 360 6.100%
38 No 120 117 360 6.140%
39 No 120 117 360 5.680%
48 No 120 117 360 5.910%
48 No 120 117 360 5.910%
50 No 120 115 360 5.540%
52 No 60 55 IO 5.700%
55 No 132 114 360 6.090%
57 No 120 116 360 5.720%
61 No 120 117 IO 6.240%
62 No 120 117 360 6.110%
64 No 120 114 360 5.730%
67 No 120 117 360 5.850%
69 No 120 117 360 6.240%
70 No 120 116 360 5.940%
71 No 120 115 360 5.540%
72 No 60 57 360 6.550%
72 No 60 57 360 6.550%
72 No 60 57 360 6.550%
74 No 120 116 360 5.640%
78 No 120 115 360 5.610%
79 No 120 117 120 6.100%
80 No 120 119 336 6.530%
81 No 120 119 336 6.530%
82 No 120 112 360 5.650%
83 No 120 120 360 6.590%
89 No 120 118 IO 6.520%
90 No 120 116 IO 5.950%
92 No 120 118 324 6.540%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
95 No 120 118 360 6.190%
97 No 120 118 300 6.600%
99 No 120 117 300 6.690%
100 No 120 117 360 6.210%
102 No 120 115 360 5.800%
103 No 60 56 360 6.170%
107 No 120 117 360 6.290%
108 No 94 92 360 6.260%
112 No 120 115 360 5.680%
113 No 120 117 300 6.250%
115 No 132 122 IO 5.690%
117 No 60 56 360 6.420%
119 No 120 115 360 5.700%
120 No 120 116 360 6.300%
121 No 132 122 360 5.960%
122 No 120 118 324 6.400%
123 No 115 115 360 5.780%
124 No 120 116 360 6.270%
125 No 120 118 360 6.200%
126 No 120 116 360 5.850%
128 No 120 115 360 5.710%
129 No 120 117 360 5.690%
130 No 120 104 360 6.230%
131 No 120 115 360 5.760%
132 No 120 116 360 5.670%
134 No 120 112 360 5.950%
137 No 120 117 360 6.370%
139 No 120 115 360 5.760%
140 No 120 114 360 5.530%
143 No 120 116 360 6.300%
145 No 120 116 IO 5.790%
150 No 120 118 360 6.220%
153 No 120 117 360 6.380%
155 No 120 117 360 6.100%
156 No 120 115 360 5.770%
159 No 60 56 IO 5.850%
160 No 120 118 360 6.340%
162 No 120 117 300 6.520%
163 No 120 118 360 6.430%
165 No 120 117 360 6.160%
167 No 120 117 360 6.290%
168 No 120 115 360 5.900%
169 No 120 116 360 6.210%
170 No 120 116 360 5.900%
172 No 120 116 360 6.180%
173 No 120 118 360 6.630%
174 No 120 117 360 6.490%
177 No 120 117 360 6.130%
179 No 120 116 360 6.380%
180 No 120 117 300 6.330%
183 No 120 117 360 6.400%
184 No 120 120 360 6.840%
185 No 120 116 360 6.300%
186 No 120 116 360 5.790%
189 No 120 115 360 5.680%
189 No 120 115 360 5.680%
191 No 120 116 360 6.300%
192 No 120 117 360 6.290%
194 No 120 117 360 6.260%
202 No 120 117 360 6.130%
203 No 120 117 IO 5.700%
206 No 120 116 360 5.850%
207 No 120 116 360 6.280%
210 No 120 117 240 6.250%
211 No 120 117 360 5.780%
212 No 120 116 360 6.300%
213 No 120 116 360 5.660%
214 No 120 116 360 5.950%
216 No 120 116 360 6.300%
221 No 120 116 360 6.350%
223 No 120 117 360 6.030%
231 No 120 118 360 6.160%
Totals and
Weighted Averages: 116 113 354 6.163%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan and (ii) the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
18 months prior to the Closing Date as set forth on Schedule A to this Exhibit
2, each Mortgaged Property is in good repair and condition and all building
systems contained therein are in good working order (or adequate reserves
therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) 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, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the 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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Seller's knowledge, does not as of the date hereof, specifically
exclude acts of terrorism from coverage. With respect to each of the Mortgage
Loans, the related Mortgage Loan Documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage 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.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
Representation No. 2: Whole Loan; Ownership of Mortgage Loans
Loan No. 6, Wyvernwood Garden Apartments: The Mortgage Loan is a senior note of
the related whole loan.
Loan No. 3, Easton Town Center: The Mortgage Loan is one of the pari passu
notes, which are senior to two subordinate notes. Such pari passu notes and
subordinate notes comprise the related whole loan.
Loan No. 5, U.S. Foodservice Portfolio: The Mortgage Loan is one of the pari
passu notes of the related whole loan.
Loan No. 26, Varsity Apartments: The Mortgage Loan is a senior note of the
related whole loan.
Loan No. 80, Ohio Office Portfolio - Atrium of Westlake; Loan No. 80, Ohio
Office Portfolio - Rockwood Center Office Building: The Mortgage Loan is a
senior note of the related whole loan. The two whole loans are cross-defaulted.
Loan No. 37, Kmart Portfolio - Uklah, Xxxx Kmart and Riverside Kmart: The
Mortgage Loan is a senior note of the related whole loan.
Representation No. 4: Lien; Valid Assignment
Loan No. 5, U.S. Foodservice Portfolio: All personal property (other than
fixtures) at each Mortgaged Property is owned by the tenant under the master
lease and is not subject to the lien of the Mortgage.
Representation No. 14: Insurance
Loan No. 202, Otay Mesa Parking Facility: As the Mortgaged Property is a parking
lot, worker's compensation insurance, boiler and machinery insurance, flood
insurance, builder's risk insurance and other insurance (except liability
insurance, terrorism insurance and business interruption insurance) were waived
under the Mortgage Loan documents.
Representation No. 23: Compliance with Laws
Loan No. 202, Otay Mesa Parking Facility: As a post-closing obligation, the
Mortgagor is required to clear two violations (one for the storage of motor
homes and the other for the installation of electric lights without a permit).
Loan No. 30, SROA Self Storage Properties: As a post-closing obligation, the
Mortgagor is required to clear rear and side setback violations at one of the
Mortgaged Properties.
Loan No. 162, ACRE Rutgers University Student Housing Portfolio: As a
post-closing obligation, the Mortgagor is required to cure two local law
violations with respect to the Mortgaged Property.
Representation No. 25: Releases of Mortgaged Property
Loan No. 3, Easton Town Center: The Mortgage Loan allows for a release of up to
15,000 square feet of gross leasable area of income-producing portions of the
Mortgaged Property and transfer of such property to a third party; provided that
such transfer will not materially impair the utility and operation of the
Mortgaged Property or adversely affect the Mortgagor's ability to repay the
Mortgage Loan, subject to the satisfaction of certain conditions, including, but
not limited to, (i) the Mortgagor prepays (together with the applicable yield
maintenance premium) a portion of the Mortgage Loan in an amount which will
result in the DSCR equaling or exceeding the greater of the DSCR on the loan
closing date and the DSCR immediately preceding such release; provided, however,
that if the DSCR immediately prior to and immediately after such release is
greater than or equal to 1.20x, the Mortgagor is not required to make a
prepayment in connection with such release, and (ii) a Rating Agency
Confirmation is obtained. In addition, the Mortgage Loan allows a release for
(A) the unimproved, non-income producing parcels of the Mortgaged Property
identified in the Mortgage Loan documents and (B) any non-income producing
parcel of the Mortgaged Property which is not identified in the Mortgage Loan
documents, and in the case of each of clauses (A) and (B), transfer such
non-income producing parcel to a third party for the purpose of the transferee
erecting and operating additional structures, the use of which is consistent
with a retail, mixed use project, subject to certain conditions set forth in the
Mortgage Loan documents.
Loan No. 5, U.S. Foodservice Portfolio: From and after the expiration of the
lockout period (which is the period ending on the earlier of (a) the date on
which the last pari passu note to be securitized has been deposited into a
securitization or (b) August 2, 2008), the Mortgage Loan allows for a release of
an individual property, subject to the satisfaction of certain conditions,
including, but not limited to, (i) the payment of a release price and the
applicable yield maintenance premium or, from and after the expiration of the
defeasance lockout period, effecting a partial defeasance (as set forth below),
(ii) the DSCR for the remaining properties will not be less than the greater of
the DSCR as of the loan closing and 80% of the DSCR immediately prior to such
release, (iii) the LTV ratio for the remaining properties will not be greater
than the LTV ratio at the loan closing and (iv) the Mortgagor executes and
delivers such other instruments, certificates, opinions of counsel and
documentation as the Mortgagee and the Rating Agencies reasonably request.
At any time subsequent to the defeasance lockout period (which is the
period commencing on the first day after the expiration of the prepayment
lockout period and ending on the date that is 2 years after the date on which
the entire principal amount of each pari passu note is securitized) and prior to
the date that is 6 months prior to the maturity date, the Mortgage Loan allows
for a release of an individual property by defeasance, subject to the
satisfaction of certain conditions, including, but not limited to, (i) the
applicable conditions set forth in the immediately preceding paragraph regarding
a property release are satisfied, (ii) the defeasance collateral has been
deposited as set forth in the Mortgage Loan documents, and (iii) a Rating Agency
Confirmation is obtained.
In addition, the Mortgage Loan allows a substitution, subject to the
satisfaction of certain conditions, including, but not limited to, (i) such
right of substitution is limited to individual properties whose aggregate
release amounts represents not greater than 30% of the loan amount, (ii) the
DSCR for the remaining properties will not be less than the greater of the DSCR
as of the loan closing and 80% of the DSCR immediately prior to such
substitution, (iii) the LTV ratio for the remaining properties will not be
greater than the LTV ratio at the loan closing, (iv) such substitution will not
cause the aggregate release amounts with respect to individual properties in any
single State to exceed 30% of the loan amount and (v) a Rating Agency
Confirmation is obtained.
Loan No. 25, Exeter Industrial Portfolio - 0000 Xxxxx Xxxxx Xxxxxxxxx; Loan No.
25, Exeter Industrial Portfolio - 000 Xxxxxxxxxxx Xxxxx; Loan Xx. 00, Xxxxxx
Xxxxxxxxxx Xxxxxxxxx - 00000 Freeport Drive: The Mortgage Loan allows for
partial release with respect to a Mortgaged Property subject to the satisfaction
of certain conditions, including, but not limited to, the following: (i) the
DSCR with respect to the remaining Mortgaged Properties would not be less than
the DSCR immediately prior to such release, (ii) payment of a release price in
an amount equal to 115% of the allocated loan amount or an amount determined by
the Mortgagee to be sufficient to cause the DSCR with respect to the remaining
Mortgaged Properties to satisfy the condition set forth in clause (i) of this
paragraph, (iii) payment of the applicable yield maintenance premium, and (iv) a
Rating Agency Confirmation is obtained.
In addition, the Mortgage Loan allows for partial defeasance with respect
to a Mortgaged Property subject to the satisfaction of certain conditions,
including, but not limited to, the following: (i) the DSCR with respect to the
remaining Mortgaged Properties would not be less than the DSCR immediately prior
to such defeasance, (ii) the defeasance amount would be equal to 115% of the
allocated loan amount or an amount determined by the Mortgagee to be sufficient
to cause the DSCR with respect to the remaining Mortgaged Property to satisfy
the condition set forth in clause (i) of this paragraph, and (iii) a Rating
Agency Confirmation is obtained.
Loan No. 72, Crestview Eastern Milestone Portfolio - Shoppes at Milestone; Loan
Xx. 00, Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxxxxxx Xxxxx; Loan Xx. 00,
Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxxxx Xxxxx: The Mortgage Loan allows
for partial defeasance with respect to a Mortgaged Property subject to the
satisfaction of certain conditions, including, but not limited to, the
following: (i) the defeasance amount would be equal to 125% of the allocated
loan amount, (ii) the DSCR with respect to the remaining Mortgaged Properties
would not be less than 1.20x, (iii) the LTV ratio with respect to the remaining
Mortgaged Properties would not be greater than 80%, and (iv) a Rating Agency
Confirmation is obtained.
Loan Xx. 00, Xxxx Xxxxxx Xxxxxxxxx - Xxxxxx xx Xxxxxxxx; Loan No. 80, Ohio
Office Portfolio - Rockwood Center Office Building: In addition to allowing a
full defeasance of the two loans set forth above simultaneously (which are
cross-defaulted and cross-collateralized), each of such loans permits the
related Mortgagor to defease only one of the two loans (and no simultaneously
defease the other loan), subject to the satisfaction of certain conditions,
including, but not limited to, the following: (i) the Mortgagor of the loan
being defeased delivers defeasance collateral that is sufficient to generate
125% of debt service under such loan and the excess 25% portion of such
defeasance collateral is used to partially defease the other loan (the "Partial
Defeasance Loan"), (ii) the DSCR with respect to the Partial Defeasance Loan
(including the A note and the B note) would not be less than 1.20x, (iii) the
LTV ratio with respect to the Partial Defeasance Loan (including the A note and
the B note) would not be greater than 75%, and (iv) a Rating Agency Confirmation
is obtained.
Loan No. 216, Drakes Creek Shops: The Mortgage allows for the release of a
certain specified portion of the Mortgaged Property on or after July 1, 2012,
subject to the satisfaction of certain conditions, including, but not limited
to, the following: (i) prepayment of the Mortgage Loan in an amount not less
than the consideration paid for the release parcel by its purchaser, net the
actual un-reimbursed costs and expenses incurred by the Mortgagor relating to
the sale of the release parcel and such prepayment (provided that if such
prepayment would be in an amount greater than or equal to 75% of the then
outstanding principal balance of the Mortgage Loan, the Mortgagor would be
required to prepay the entire Mortgage Loan), (ii) payment of the applicable
yield maintenance premium, (iii) the DSCR with respect to the remaining
Mortgaged Property would not be less than the greater of 1.20x and the DSCR
immediately prior to such partial release, (iv) the LTV ratio with respect to
the remaining Mortgaged Property would not be greater than the lesser of 80% or
the LTV ratio immediately prior to such partial release, and (v) a Rating Agency
Confirmation is obtained.
Loan Xx. 00, Xxxxxxxx Xxxxx: The Mortgage Loan allows for partial defeasance
with respect to a certain specified portion of the Mortgaged Property, subject
to the satisfaction of certain conditions, including, but not limited to, the
following: (i) the DSCR with respect to the remaining Mortgaged Property would
not be less than 1.20x, (ii) the LTV ratio with respect to the remaining
Mortgage Property would not be greater than 80%, (iii) the defeasance amount
would be $500,000 and (iv) a Rating Agency Confirmation is obtained.
Loan Xx. 00, Xxxxxxx/Xxxxxx Xxxxxxxxx: The Mortgage allows for the release of a
certain specified portion of the Mortgaged Property subject to the satisfaction
of certain conditions, including, but not limited to, the following: (i) payment
of a release price (and the applicable yield maintenance premium) set forth in
the Mortgage Loan documents, (ii) the DSCR with respect to the remaining
Mortgaged Property would not be less than the greater of 1.20x and the DSCR
immediately prior to such partial release, and (iii) the LTV ratio with respect
to the remaining Mortgaged Property would not be greater than the lesser of 70%
or the LTV ratio immediately prior to such partial release.
Loan Xx. 000, Xxxxx Xxxxx Xxxxxxxx Xxxxxx: The Mortgage allows for release of a
vacant parcel without the payment of a release price, subject to the
satisfaction of certain conditions, including, but not limited to, the receipt
by the Mortgagee of evidence that the remainder of the Mortgaged Property is a
distinct tax lot and legal parcel separate from the release parcel.
Loan No. 52, Ridgewood Commons: The Mortgage Loan allows for the release of a
certain specified portion of the Mortgaged Property, subject to the satisfaction
of certain conditions, including, but not limited to, the following: (i) the
DSCR with respect to the remaining Mortgaged Property would not be less than the
greater of the DSCR as of the closing of the Mortgage Loan and the DSCR
immediately prior to such partial release, (ii) prepayment of the Mortgage Loan
in an amount equal to the greater of $1,000,000 or an amount determined by the
Mortgagee in its sole discretion sufficient to cause the DSCR with respect to
the remaining Mortgaged Property to satisfy the condition set forth in clause
(i) of this paragraph, and (iii) payment of the applicable yield maintenance
premium.
Loan No. 37, Kmart Portfolio - Uklah, Xxxx Kmart and Riverside Kmart: Pursuant
to each Kmart/Home Depot lease, if (i) a casualty requires Kmart or Home Depot,
as applicable, to close for more than 60 days to rebuild or a condemnation
leaves the property uneconomic and permanently unsuitable, (ii) an event of
default has occurred and in continuing regarding environmental matters, (iii)
after the 5th anniversary Kmart or Home Depot, as applicable, determines that
the property is unsuitable, or (iv) Kmart or Home Depot, as applicable, elects
to make an alteration with an estimated cost in excess of $3,000,000 and
subsequently Kmart or Home Depot, as applicable, the borrower and the lender
cannot reach an agreement regarding reimbursement, then Kmart or Home Depot, as
applicable, my elect to either (a) substitute the leased property (subject to
the borrower's and the borrower's mortgagee's reasonable approval, which such
approval as it relates to the borrower's mortgagee may be based upon receipt of
a REMIC opinion as well as upon confirmation that the substitution will not
result in a downgrade, withdrawal or qualification of any rating then assigned
to the certificates) or (b) purchase the property. If the borrower rejects the
offer to purchase, the lease will terminate, which such termination will be at
least 180 days after the date of the notice of purchase offer. These are
mitigated by the use of recourse in the note and lease enhancement insurance
policies in place at loan closing.
Xxxx Xx. 000, Xxxxx Xxxxxxxx Shops; Loan No. 212, Creekside Shops; Loan No. 185,
Melrose Center Shop, Loan No. 191, Trace Creek Shops: Each of these Mortgage
Loans allows for partial release with respect to a certain specified portion of
the related Mortgaged Property, subject to the satisfaction of certain
conditions, including, but not limited to, the following: (i) prepayment of the
related Mortgage Loan in an amount not less than the consideration paid for the
applicable release parcel by its purchaser, net the actual un-reimbursed costs
and expenses incurred by the related Mortgagor relating to the sale of the
release parcel and such prepayment (provided that if such prepayment would be in
an amount greater than or equal to 75% of the then outstanding principal balance
of the applicable Mortgage Loan, the related Mortgagor would be required to
prepay the entirety of such Mortgage Loan), (ii) payment of the applicable yield
maintenance premium, (iii) the DSCR with respect to the remaining related
Mortgaged Property would not be less than the greater of 1.20x and the DSCR
immediately prior to such partial release, (iv) the LTV ratio with respect to
the remaining related Mortgaged Property would not be greater than the lesser of
80% or the LTV ratio immediately prior to such partial release, and (v) a Rating
Agency Confirmation is obtained.
Representation No. 30: Junior Liens
Loan No. 6, Wyvernwood Garden Apartments: The Mortgage Loan is a senior note of
the related whole loan. The subordinate notes consist of (i) a $28 Million note
and (ii) a $27 Million note (currently held by CIT Real Estate), which is
subordinated to the $28 Million note. [Note: $28 Million B note is being created
off the existing A note.]
Loan No. 3, Easton Town Center: The Mortgage Loan is one of the pari passu
notes, which are senior to two subordinate notes. Such pari passu notes and
subordinate notes comprise the related whole loan.
Loan No. 5, U.S. Foodservice Portfolio: The Mortgage Loan is one of the pari
passu notes of the related whole loan.
Loan No. 26, Varsity Apartments: The Mortgage Loan is a senior note of the
related whole loan.
Loan No. 80, Ohio Office Portfolio - Atrium of Westlake; Loan Xx.00, Xxxx Xxxxxx
Xxxxxxxxx - Xxxxxxxx Center Office Building: The Mortgage Loan is a senior note
of the related whole loan. The two whole loans are cross-defaulted.
Loan No. 37, Kmart Portfolio - Uklah, Xxxx Kmart and Riverside Kmart: The
Mortgage Loan is a senior note of the related whole loan. The subordinate note
has an original principal balance of $3.5 Million. [Note: the B note is being
created, with the A note resulting in $14 Million (original principal balance).]
Loan No. 126, Brooklyn Centre: The related Mortgaged Property is also subject to
a mortgage held by the City of Cleveland, which mortgage is subordinated to the
Mortgage of the mortgage loan pursuant to a subordination and standstill
agreement.
Loan No. 20, Art Institute Student Housing: The Mortgaged Property is also
subject to a mortgage held by the Urban Redevelopment Authority of Pittsburgh,
which mortgage is subordinated to the Mortgage of the Mortgage Loan pursuant to
an intercreditor and standstill agreement.
Representation No. 33: Licenses and Permits
Loan No. 177, Xxxxx River Shopping Center: At loan closing, a certificate of
occupancy has not been issued. The non-recourse carve-out guarantee covers any
loss from the failure to obtain the certificate of occupancy.
Loan No. 162, ACRE Rutgers University Student Housing Portfolio: As a
post-closing obligation, the Mortgagor is required to obtain a permanent
certificate of occupancy with respect to each of the four properties comprising
the Mortgaged Property.
Loan No. 52, Ridgewood Commons: As a post-closing obligation, the Mortgagor is
required to obtain a certificate of inspection with respect to the residential
portion of the Mortgaged Property.
Loan Xx. 000, Xxxxxxxxx Xxxx Xxxxxx Xxxxxx: As a post-closing obligation, the
Mortgagor is required to use its best efforts to obtain a certificate of
occupancy with respect to certain portions of the Mortgaged Property.
Loan No. 89], 000-000 Xxxxxxxxx Xxx: As a post-closing obligation, the Mortgagor
is required to obtain a revised permanent certificate of occupancy relating to
one of the two properties comprising the Mortgaged Property.
Loan Xx. 000, 00000 X. Xxxxxxxxxx, Xxxxx 000: As a post-closing obligation, the
Mortgagor is required to obtain a certificate of occupancy.
Loan No. 32, Bank of America - 00 Xxxx 00xx Xxxxxx: As a post-closing
obligation, the Mortgagor is required to obtain a permanent certificate of
occupancy.
Loan No. 97, Holiday Inn & Suites Conference Center: An affiliate of the
Mortgagor, rather than the Mortgagor, holds the liquor license relating to the
Mortgaged Property.
Representation No. 35: Due on Sale
Loan No. 3, Easton Town Center: Future mezzanine financing is permitted at any
time after two years of the securitization, subject to certain conditions,
including: (i) the LTV ratio based on the Mortgage Loan and the mezzanine loan
will be no greater than 86%, (ii) the DSCR based on the Mortgage Loan and the
mezzanine loan would not be less than 1.00x and (iii) a Rating Agency
Confirmation is obtained.
Loan No. 13, Amalfi Hotel: Future mezzanine financing is permitted subject to
certain conditions, including: (i) the LTV ratio based on the Mortgage Loan and
the mezzanine loan will be no greater than 70%, (ii) the DSCR based on the
Mortgage Loan and the mezzanine loan would not be less than 1.35x and (iii) a
Rating Agency Confirmation is obtained.
Loan No. 16, Centerpoint Medical Building: Future mezzanine financing is
permitted, subject to certain conditions, including: (i) the LTV ratio based on
the Mortgage Loan and the mezzanine loan will be no greater than 75%, (ii) the
DSCR based on the Mortgage Loan and the mezzanine loan would not be less than
1.15x and (iii) a Rating Agency Confirmation is obtained.
Loan No. 62, Peninsula Corporate Center: Future mezzanine financing is
permitted, subject to certain conditions, including: (i) the LTV ratio based on
the Mortgage Loan and the mezzanine loan will be no greater than 80%, (ii) the
DSCR based on the Mortgage Loan and the mezzanine loan would not be less than
1.20x and (iii) a Rating Agency Confirmation is obtained.
Loan Xx. 00, 0000 X Xxxxxx XX: Future mezzanine financing is permitted subject
to certain conditions, including: (i) the LTV ratio based on the Mortgage Loan
and the mezzanine loan will be no greater than 80% and (ii) a Rating Agency
Confirmation is obtained.
Loan No. 50, 0000 00xx Xxxxxx XX: Future mezzanine financing is permitted
subject to certain conditions, including: (i) the LTV ratio based on the
Mortgage Loan and the mezzanine loan will be no greater than 80% and (ii) a
Rating Agency Confirmation is obtained.
Loan No. 120, Why Self Storage: Future mezzanine financing is permitted subject
to certain conditions, including: (i) the LTV ratio based on the Mortgage Loan
and the mezzanine loan will be no greater than 75%, (ii) the DSCR based on the
Mortgage Loan and the mezzanine loan would not be less than 1.20x and (iii) a
Rating Agency Confirmation is obtained.
Loan No. 107, Westlake Village: Future mezzanine financing is permitted subject
to certain conditions, including: (i) the LTV ratio based on the Mortgage Loan
and the mezzanine loan will be no greater than 80%, (ii) the DSCR based on the
Mortgage Loan and the mezzanine loan would not be less than 1.20x and (iii) a
Rating Agency Confirmation is obtained.
Loan No. 32, Bank of America - 00 Xxxx 00xx Xxxxxx: Future mezzanine financing
is permitted at any time that is not within 90 days of a securitization of the
Mortgage Loan, subject to certain conditions, including, but not limited to, the
following: (i) the LTV ratio based on the Mortgage Loan and the mezzanine loan
would not be greater than 85%, (ii) the DSCR based on the Mortgage Loan and the
mezzanine loan would not be less than 1.07x and (iii) a Rating Agency
Confirmation is obtained.
Loan No. 79, Xxxxxxx-Xxxxxx Medical Clinic: Future mezzanine financing is
permitted at any time, subject to certain conditions, including, but not limited
to, the following: (i) the LTV ratio based on the Mortgage Loan and the
mezzanine loan would not be greater than 50%, (ii) the DSCR based on the
Mortgage Loan and the mezzanine loan would not be less than 1.20x and (iii) a
Rating Agency Confirmation is obtained.
Loan Xx. 000, Xxxxxxxxx Xxxxxxxx: Future mezzanine financing is permitted at any
time that is not within 60 days of the securitization of the Mortgage Loan,
subject to certain conditions, including, but not limited, the following: (i)
the LTV ratio based on the Mortgage Loan and the mezzanine loan would be no
greater than 80%, (ii) the DSCR based on the Mortgage Loan and the mezzanine
loan would not be less than 1.24x and (iii) a Rating Agency Confirmation is
obtained. Additionally, future secured subordinate financing is permitted at any
time that is not within 60 days of the securitization of the Mortgage Loan,
subject to certain conditions, including, but not limited, the following: (i)
the subordinate financing would not exceed $450,000 and (ii) a Rating Agency
Confirmation is obtained.
Loan No. 112, Oceanside Self Storage: Future mezzanine financing is permitted at
any time after May 17, 2009, subject to certain conditions, including, but not
limited, the following: (i) the LTV ratio based on the Mortgage Loan and the
mezzanine loan would be no greater than 80%, (ii) the DSCR based on the Mortgage
Loan and the mezzanine loan would not be less than 1.20x and (iii) a Rating
Agency Confirmation is obtained.
Loan No. 189, Texas Retail Portfolio - Green Oaks, Loan Xx. 000, Xxxxx Xxxxxx
Xxxxxxxxx - Xxxxxxxxxx Xxxxxx: Future mezzanine financing is permitted, subject
to certain conditions, including: (i) the LTV ratio based on the Mortgage Loan
and the mezzanine loan will be no greater than 85%, (ii) the DSCR based on the
Mortgage Loan and the mezzanine loan would not be less than 1.15x and (iii) a
Rating Agency Confirmation is obtained at the discretion of the Mortgagee.
Loan No. 210], Xxxxxxx Industrial: Future mezzanine financing is permitted at
any time after two years of the securitization, subject to certain conditions,
including, but not limited, the following: (i) the LTV ratio based on the
Mortgage Loan and the mezzanine loan would be no greater than 80%, (ii) the DSCR
based on the Mortgage Loan and the mezzanine loan would not be less than 1.10x,
(iii) the principal amount of the mezzanine loan is not less than $250,000, and
(iv) other conditions required by the Mortgagee and the Rating Agencies.
Loan No. 179, Florida City Commons: Future mezzanine financing is permitted at
any time after July 1, 2009, subject to certain conditions, including, but not
limited, the following: (i) the LTV ratio based on the Mortgage Loan and the
mezzanine loan would be no greater than 80%, (ii) the DSCR based on the Mortgage
Loan and the mezzanine loan would not be less than 1.20x, and (iii) other
conditions required by the Mortgagee and the Rating Agencies.
Loan Xx. 00, Xxxxx 0-00: Future mezzanine financing is permitted in connection
with an assumption of the Mortgage Loan, subject to certain conditions,
including, but not limited, the following: (i) the LTV ratio based on the
Mortgage Loan and the mezzanine loan would be no greater than 75%, (ii) the DSCR
based on the Mortgage Loan and the mezzanine loan would not be less than 1.10x,
and (iii) the Mortgagee, in its reasonable discretion, approves the mezzanine
lender (provided that the Mortgagor, or an affiliate thereof, is approved so
long as it has a net worth of at least $20,000,000).
Loan Xx. 000, XXXX Xxxxxxxx - Xxxxxxx Xxxxxxxxx: Future mezzanine financing is
permitted at any time that is not within 90 days of the sale or securitization
of the Mortgage Loan, subject to certain conditions, including: (i) the LTV
ratio based on the Mortgage Loan and the mezzanine loan will be no greater than
80%, (ii) the DSCR based on the Mortgage Loan and the mezzanine loan will not be
less than 1.0x and (iii) other conditions required by the Mortgagee and the
Rating Agencies.
Loan No. 35, Plaza on the Green: A limited future mezzanine financing is
permitted for the purpose of funding a springing environmental reserve, subject
to certain conditions, including: (i) the LTV ratio based on the Mortgage Loan
and the mezzanine loan will be no greater than 75%, and (ii) the DSCR based on
the Mortgage Loan and the mezzanine loan would not be less than 1.07x. Under the
Mortgage Loan documents, the Mortgagor will be required to fund an environmental
reserve if its tenant (a car wash shop) fails to comply with remedial activities
and monitoring efforts at its leased premises for a LUST case as required by an
environmental regulatory agency and the agency holds the Mortgagor responsible
for any remediation cost at the leased premises and such costs exceeds the
amount that is reimbursable from the related state environmental fund.
Representation No. 36: Non-Recourse Exceptions
For each of the following Mortgage Loans, the recourse obligations are not to a
natural person:
Loan Xx. 0, Xxxxxx Xxxx Xxxxxx
Xxxx Xx. 0, X.X. Foodservice Portfolio
Loan No. 20, Art Institute Student Housing
Loan No. 11, Solana Beach Corporate Center III & IV
Loan No. 25, Exeter Industrial Portfolio - 0000 Xxxxx Xxxxx Xxxxxxxxx
Loan No. 25, Exeter Industrial Portfolio - 000 Xxxxxxxxxxx Xxxxx
Loan No. 25, Exeter Industrial Portfolio - 00000 Xxxxxxxx Xxxxx
Loan No. 28, Cotton Corporate Center Flex
Loan No. 29, Cotton Corporate Center Office
Loan Xx. 00, Xxxxxx Xxxx Xxxxxxxx
Xxxx Xx. 00, Kmart Portfolio - Uklah, Xxxx Kmart and Xxxxxxxxx Xxxxx
Xxxx Xx. 0, Xxxxxx Xxxx Center: With respect to misappropriation of rent, only a
misappropriation of rent after the occurrence of an event of default is covered.
With respect to the environmental covenants, the Mortgagor is not liable for
breaches of such covenants to the extent that a claim is covered by
environmental insurance.
Loan No. 79, Xxxxxxx-Xxxxxx Medical Clinic: Loan Xx. 000, 00 Xxxxxx Xxxxxx: With
respect to the environmental covenants, only a "willful" breach thereof is
covered in the non-recourse carve-out guaranty of a natural person.
Loan Xx. 000, 0 Xxxxxxx Xxxxx: With respect to misappropriation of rent, only a
misappropriation of rent after the occurrence of an event of default, or of rent
collected more than 30 days in advance, is covered in the non-recourse carve-out
guaranty of a natural person.
Representation No. 40: Single Purpose Entity
Loan No.35, Plaza on the Green: The organizational documents of the Mortgagor
provides that the Mortgagor can only own the Mortgaged Property, but do not
contain SPE provisions. However, the Mortgagor executed a certificate containing
additional covenants and certifying its status as an Special Purpose Entity.
Representation No. 42: Defeasance.
Loan No. 50, Town Square at Canton: The defeasance collateral may also be
non-callable obligations that are "government securities" within the meaning of
Section 1.860G-2(a)(8) of the U.S. Department of Treasury Regulations, as
amended.
Representation No. 44: Terrorism Insurance.
Loan No. 6, Wyvernwood Garden Apartments: The Mortgagor is not required to pay
annual premiums for terrorism insurance in excess of an amount equal to 200% of
the aggregate insurance premiums from time to time payable in respect of all of
the insurance policies required to be maintained by the Mortgagor under the
Mortgage Loan documents (as such amount is adjusted pursuant to the Mortgage
Loan documents), which amount applies only to the next succeeding renewal of any
such terrorism insurance.
Loan No. 3, Easton Town Center: The Mortgagor is not required to pay annual
premiums for terrorism insurance in excess of 1.5 times the then current annual
premium for the commercial all risk insurance coverage then in effect.
Loan No. 5, U.S. Foodservice Portfolio: Terrorism insurance is only required up
to such amount that can be purchased for an annual premium not in excess of
$200,000.
Loan Xx. 00, Xxxxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx: If the Terrorism Risk
Insurance Act of 2002 (as extended, modified or amended) is not in effect, then
the Mortgagor is only required to maintain terrorism insurance with the maximum
amount of coverage that the Mortgagor is able to acquire by paying a premium
equal to 50% of the premium for the comprehensive all risk insurance policy
required under the Mortgage Loan documents.
Loan No. 13, Amalfi Hotel: The Mortgagor is not required to pay annual premiums
for terrorism insurance in excess of $100,000.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
Westlake Atrium LLC
Rockside Office Plaza LLC
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL
HOLDINGS LLC
By:
--------------------------------------
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx (the "Seller"), being duly empowered and
authorized to do so, does hereby make, constitute and appoint Capmark Finance
Inc., having an address of 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Master Servicer"), Centerline Servicing Inc. (formerly ARCap Servicing, Inc.),
having an address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxx X. Xxxxx (the "Special Servicer"), and LaSalle Bank National
Association, having an address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services--MS 2007-IQ16
(the "Trustee"), as the true and lawful attorneys-in-fact for the undersigned,
in its name, place and stead, and for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of
the failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Xxxxx Fargo Master Servicer, NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November 2007.
Witnessed by: XXXXXX XXXXXXX MORTGAGE
CAPITAL HOLDINGS LLC
By:
--------------------------- ---------------------------
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for said
county, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person acted and executed the instrument.
Witness my hand and official seal.
---------------------------
Commission Expires:
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II
(GECC)
MORTGAGE LOAN PURCHASE AGREEMENT
(GECC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between General Electric Capital Corporation (the "Seller"),
and Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, Xxxxx Fargo 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 the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (except with respect to the Class A-4 Certificates) and RBC
Capital Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $728,005,936. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
as of November 29, 2007, will be executed by the Seller and the applicable
Master Servicer, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing Agreement. In
connection with such transfer and assignment, the Seller shall deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause (a) below) for each
Mortgage Loan and on or prior to the fifth Business Day after the Closing Date,
five limited powers of attorney substantially in the form attached hereto as
Exhibit 5 in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, the applicable Master
Servicer and, in the event of the failure or incapacity of the Trustee and the
applicable Master Servicer, the applicable Special Servicer, to submit for
recording, at the expense of the Seller, any mortgage loan documents required to
be recorded as described in the Pooling and Servicing Agreement and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files (so long as original counterparts have
previously been delivered to the Trustee). The Seller agrees to reasonably
cooperate with the Trustee, the applicable Master Servicer and the applicable
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the Seller, but in no event earlier than 18 months
from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the Seller's expense, after the periods set forth
above; provided, however, the Trustee shall not submit such assignments for
recording if the Seller produces evidence that it has sent any such assignment
for recording and certifies that the Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, the Seller shall deliver to the Custodian on behalf of the
Trustee each of the remaining documents or instruments specified below (with
such exceptions and additional time periods as are permitted by this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The Seller
acknowledges that the term "without recourse" does not modify the duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "LaSalle Bank National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Custodian on behalf of the Trustee or the agents of
either may submit or cause to be submitted for recordation at the expense of the
Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date; provided, however,
that if a franchisor is not obligated to issue a franchise comfort letter under
the related franchise agreement, the Seller shall make reasonable efforts to
obtain such franchise comfort letter from the franchisor on or prior to the date
that is thirty (30) days after the Closing Date. As to each Mortgage Loan
secured by a Mortgaged Property with respect to which a letter of credit is in
place, the Seller shall notify, on or before the Closing Date, the bank issuing
the letter of credit that such Mortgage Loan will be transferred to the Trust
pursuant to the Pooling and Servicing Agreement and such letter of credit and
the proceeds thereof belong to the Trust after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer, and use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement of the above notice by
the bank (with a copy of such acknowledgement to be sent to the Custodian on
behalf of the Trustee) or a reissued letter of credit. After the Closing Date,
with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of the applicable Master Servicer or the
applicable Primary Servicer, the Seller will draw on such letter of credit as
directed by the Master Servicer or such Primary Servicer in such notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the applicable Master Servicer and satisfy Seller's obligations
under this sub-paragraph. Each of the foregoing items shall be delivered by the
Seller in electronic form, to the extent such document is available in such form
and such form is reasonably acceptable to the applicable Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. The Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall, upon reasonable
request by any of the Purchaser, each Underwriter, the Initial Purchaser, the
Trustee, the Custodian, the applicable Special Servicer and each Rating Agency,
make available to them all books, records and files pertaining to the Mortgage
Loans, the Seller's underwriting procedures and the Seller's ability to perform
or observe all of the terms, covenants and conditions of this Agreement. On or
prior to the Closing Date, upon reasonable request the Seller shall provide the
Purchaser with all material information and respond to questions with respect to
the Seller's ability to consummate the transactions contemplated hereby. Within
45 days after the Closing Date, the Seller shall provide the applicable Master
Servicer or Primary Servicer, if applicable, with any additional information
identified by the applicable Master Servicer or Primary Servicer, if applicable,
as necessary to complete the CMSA Property File, to the extent that such
information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of Delaware. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's certificate of incorporation or by-laws, (B)
any term or provision of any material agreement, contract, instrument or
indenture to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of November
15, 2007, between the Seller, the Purchaser, the Underwriters and the
Initial Purchaser (the "Indemnification Agreement")) contained in the
Disclosure Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement as of the Time of Sale (as
defined in the Indemnification Agreement) (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) (other than the Memorandum)
complies with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Custodian on behalf of the Trustee pursuant to Section 2
is not delivered as and when required (and including the expiration of any grace
or cure period), is not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the applicable Master Servicer as to whether either of the conditions set
forth above has been satisfied shall be conclusive and binding in the absence of
manifest error. The applicable Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the applicable Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or the applicable Special Servicer, as
applicable, shall be required to notify the Seller of the discovery of the
Material Document Defect or Material Breach and the Seller shall be required to
follow the procedures set forth in this Agreement to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's organizational
documents.
(d) A certificate of good standing for the Seller from the Secretary
of State of Delaware dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has full
organizational power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitutes a default
under, the organizational documents of the Seller, (B) to the knowledge of
such counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it or any of its assets is bound or results in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract
or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities
under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate and limited liability company laws of the State of Delaware and
the State of New York, as applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
4.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
specifically related to the Seller described under Items 1117 and 1119 of
Regulation AB and Item 1.03 to Form 8-K to the Trustee and the Purchaser within
one Business Day and in any event no later than two Business Days of the Seller
becoming aware of such event and shall provide disclosure relating to any other
event specifically related to the Seller reasonably determined by the Purchaser
as required to be disclosed on Form 8-K, Form 10-D or Form 10-K within two
Business Days following the Purchaser's request for such disclosure language.
The obligation of the Seller to provide the above-referenced disclosure
materials will terminate upon notice or other written confirmation from the
Purchaser or the Trustee that the Trustee has filed a Form 15 with respect to
the Trust as to that fiscal year in accordance with Section 13.8 of the Pooling
and Servicing Agreement or the reporting requirements with respect to the Trust
under the Securities Exchange Act of 1934, as amended, have otherwise been
automatically suspended. The Seller hereby acknowledges that the information to
be provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
General Electric Capital Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx, with a copy to GE Capital, 00000 Xxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxxxxx, and with a copy to GE
Commercial Finance, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxx XxXxxx, Esq.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation, limited liability company or other form of company resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to the entire business of the Seller shall be the successor to
the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Xxxxxxx(0) Xxxxxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------------------------
0 XXXX Xxxx Xxxx Mall $210,000,000 0000 Xxxxxxxx Xxxx
2 GECC 00 Xxxx Xxxxxx $125,000,000 00 Xxxx Xxxxxx
0 XXXX Xxxxxx Xxxx $80,000,000 000 Xxxxxxxxxx Xxxxxx
12 GECC Crowne Plaza- Addison $37,000,000 00000 Xxxxxx Xxxx
17 GECC The Links at Cadron Valley $29,925,000 0000 Xxxx Xxxxx
00 XXXX Xxxxxxxx Plaza $26,038,000 Business Xxxxxx 000 & 000
00 XXXX Xxxxxxx XXX $25,300,000 20010, 20020, & 00000 Xxxxxxx Xxxxxxxxx
31 GECC Frost Bank -Corpus Christi $19,500,000 000 Xxxxx Xxxxxxxxxx
00 XXXX Xxxxxxxxxx Xxxxx $12,700,000 00000 XX Xxxxxxx 0
43 GECC Xxxxx Colorado Portfolio - Hickory Village (V) $4,037,225 000 Xxxxxxx Xxxxxx
43 GECC Xxxxx Colorado Portfolio - Eastwood Village (V) $3,414,569 000 00xx Xxxxxx
43 GECC Xxxxx Colorado Portfolio - Parco (V) $2,791,912 000 X. Xxxxx Xxxxxxx Xxxx
43 GECC Xxxxx Colorado Portfolio - Green Acres (V) $2,256,294 0000 00xx Xxxxxx
00 XXXX Xxx Xxxx Terrace $12,050,000 0000 Xxxxxxx Xxxxxx
46 GECC Las Palmas de la Quinta MHC $12,000,000 80000 Avenue 46
47 GECC Collegiate Commons $11,800,000 0000 Xxxxxxxxxx Xxxxxx
53 GECC Rampart Village Center $10,108,000 0000-0000 Xxxxx Xxxxx Xxxxxxxxx
66 GECC West Road Corporate Center $8,885,772 000 Xxxx Xxxx
00 XXXX Xxxxxxx Xxx $7,483,000 0000 Xxxxxxx Xxx
00 XXXX Xxxx Vista MHC $7,200,000 000 Xxxx 00xx Xxxxxx
104 GECC 000 Xxxx Xxxxxxxxx Xxxxxx $5,595,983 000 Xxxx Xxxxxxxxx Xxxxxx
106 GECC 000 Xxxxxxxxx Xxxxxxxx $5,400,000 000 Xxxxxxxxx Xxxxxxxx
000 XXXX Xxxx'x Xxxxxxx $5,265,000 Xxxxx 00 & Xxxxxxx Xxxxxxx
000 XXXX Xxxxxxxxxx Xxxxxxx Avenue $5,231,935 0000 Xxxxxxx Xxxxxx
114 GECC Promenade at Carolina Pavillion $5,100,000 00000 Xxxxxxxxxx Xxxx
000 XXXX Xxxxxx Xxxxx $4,936,000 0000 Xxxxxx Xxxxx Xxxx XX
136 GECC Rossmore Industrial $4,108,000 0000 Xxxx Xxx Xxxxx
000 XXXX Xxx Xxxxx Winter Village RV Resort $4,015,000 00000 Xxx Xxxxx Xxxx
142 GECC Victory Village MHC $3,950,000 000 Xxxxxxx Xxxxxxx
144 GECC Shoppes at Parish Place $3,800,000 000 Xxxxx Xxxxxxxx Xxxx
146 GECC Market District Center $3,776,000 0000 Xxxxxxxx Xxxxxx
161 GECC Papermill Storage $3,360,000 0000 Xxxxxxxxx Xxxx
000 XXXX Xxxxxxxxx Xxxxxx $3,300,000 0000 Xxxxxxx 00 X
171 GECC Sugar Mill MHC $3,100,000 0000 Xxxxx Xxxx Xxxx
175 GECC Halcyon Village MHC $3,000,000 00000 Xxxxxxx Xxxxx
000 XXXX Xxxxxxxx Xxxxxx Xxxx $2,997,896 0000 Xxxxxxxx Xxxxxx Xxxx
000 XXXX Xxxxxxxx MHC $2,635,000 000 Xxxxx XxXxxxxx Xxxxx Xxxx
187 GECC Enchanted Lakes MHC and RV Resort $2,493,794 000 Xxxxxxx Xxxx
000 XXXX Xxxxx Coach Village MHP $2,196,557 000 Xxxx Xxxxxx Xxxx
198 GECC Shoppes at Vista Lakes $2,175,000 0000 Xxx Xxxxx Xxxxxxxxx
000 XXXX Xxxxxxxxx - Xxxxxxxxx, XX $2,080,000 000 Xxxx Xxxxxxx Xxxxxx
000 XXXX Xxx Xxxxxxx MHC $2,000,000 0000 Xxxx Xxxx Xxxx XX
Totals and Weighted Averages: $728,005,936
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------- -----------------------------------------------------------------------------------
1 Xxxxxxxxx XX 00000 10/31/2007 12/01/2017 No
2 Xxx Xxxx XX 00000 06/06/2007 07/01/2017 Xx
0 Xxxxxx XX 00000 09/10/2007 10/01/2017 Xx
00 Xxxxxxx XX 00000 08/10/2007 09/01/2017 No
00 Xxxxxx XX 00000 08/27/2007 09/01/2017 No
00 Xxxxxxxx Xxxxxxxx XX 00000 07/27/2007 08/01/2017 No
21 Xxxxxxxxxx XX 00000 10/10/2007 11/01/2017 No
00 Xxxxxx Xxxxxxx XX 00000 07/26/2007 08/01/2017 Xx
00 Xxxxxxxxx XX 00000 07/18/2007 08/01/2014 No
43 Xxxx Xxxxxxx XX 00000 06/29/2007 07/01/2017 No
43 Xxxxx XX 00000 06/29/2007 07/01/2017 No
43 Xxxxxxxxxx XX 00000 06/29/2007 07/01/2017 No
43 Xxxxx XX 00000 06/29/2007 07/01/2017 No
00 Xxxxxxx XX 00000 07/18/2007 08/01/2017 No
46 Xxxxx XX 00000 08/01/2007 09/01/2014 No
47 Xxxxxxxxxx XX 00000 05/29/2007 06/01/2017 No
53 Xxxxxxxx Xxxxxxx XX 00000 08/30/2007 09/01/2017 Xx
00 Xxxxxx XX 00000 08/15/2007 09/01/2017 No
00 Xxxxx Xxx Xxxxx XX 00000 10/29/2007 11/01/2017 No
85 Xxxxxxxx XX 00000 06/29/2007 07/01/2017 No
000 Xxxxxx XX 00000 09/28/2007 10/01/2017 No
000 Xxxxxxxx Xxxxxx XX 00000 09/27/2007 10/01/2017 No
000 Xxxxxxx XX 00000 09/25/2007 10/01/2017 No
000 Xxxxxxx XX 00000 06/21/2007 07/01/2017 No
000 Xxxxxxxxx XX 00000 10/31/2007 11/01/2017 No
000 Xxxxx XX 00000 06/29/2007 07/01/2012 No
000 Xxxxxx Xxxxxxxxx XX 00000 06/05/2007 07/01/2017 No
000 Xxxx Xxxxxx XX 00000 08/15/2007 09/01/2017 No
000 Xxxxxxx Xxxx XX 00000 10/01/2007 11/01/2017 No
000 Xxxxxxxxxxxxxx XX 00000 09/28/2007 10/01/2017 No
000 Xxxxxxxxxx XX 00000 08/30/2007 09/01/2017 Xx
000 Xxxxxxxxx XX 00000 06/19/2007 07/01/2017 No
000 Xxxxxxxxx XX 00000 07/19/2007 08/01/2017 No
000 Xxxxx Xxxxx XX 00000 10/17/2007 11/01/2017 No
175 Xxxxxxx XX 00000 10/31/2007 11/01/2017 No
000 Xxxxxx XX 00000 09/26/2007 10/01/2017 No
000 Xxxxxxxxxx XX 00000 08/02/2007 09/01/2012 No
000 Xxxxxxx XX 00000 07/19/2007 08/01/2014 No
000 Xxxxxxx XX 00000 08/06/2007 09/01/2017 No
000 Xxxxxxx XX 00000 10/05/2007 11/01/2017 No
000 Xxxxxxxxx XX 00000 09/10/2007 10/01/2017 No
000 Xxxxxxx XX 00000 06/29/2007 07/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
-----------------------------------------------------------------------------
1 121 121 IO 6.338%
2 120 116 IO 5.771%
7 120 119 IO 6.147%
12 120 118 360 6.390%
17 120 118 360 6.030%
19 120 117 IO 6.270%
21 120 120 IO 6.320%
31 120 117 IO 6.360%
42 84 81 360 6.220%
43 120 116 360 5.960%
43 120 116 360 5.960%
43 120 116 360 5.960%
43 120 116 360 5.960%
45 120 117 IO 6.390%
46 84 82 420 6.330%
47 120 115 IO 5.630%
53 120 118 360 6.630%
66 120 118 360 6.590%
84 120 120 360 6.170%
85 120 116 IO 6.160%
104 120 119 360 6.530%
106 120 119 IO 6.680%
110 120 119 IO 5.890%
111 120 116 360 6.080%
114 120 120 IO 6.700%
118 60 56 IO 6.380%
136 120 116 IO 6.360%
138 120 118 360 6.520%
142 120 120 360 6.510%
144 120 119 360 6.470%
146 120 118 360 6.370%
161 120 116 360 6.430%
164 120 117 360 6.200%
171 120 120 IO 6.320%
175 120 120 360 6.350%
176 120 119 360 6.610%
182 60 58 360 6.570%
187 84 81 360 6.300%
197 120 118 360 6.680%
198 120 120 360 6.480%
201 120 119 IO 6.300%
204 120 116 360 6.580%
115 112 360 6.37%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. Upon the consummation of the transactions contemplated by this
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to each Mortgage Loan free
and clear of any pledge, lien, charge, security interest or other encumbrance.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained. None of the Mortgage Loan documents restricts the Seller's
right to transfer the Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report issued after the first day of the month that is 18 months
prior to the Closing Date, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established based on the engineering report) that would materially and adversely
affect its value as security for the related Mortgage Loan and (ii) the
Mortgaged Properties securing the Mortgage Loans that were not the subject of an
engineering report 18 months prior to the Closing Date as set forth on Schedule
A to this Exhibit 2, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or a comparable form as adopted in the
applicable jurisdiction) lender's title insurance policy, a pro forma policy or
a marked-up title insurance commitment (on which the required premium has been
paid) which evidences such title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment
of Leases and other agreement that evidences or secures such Mortgage Loan and
was executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by reason
of fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not prohibit
the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its successors and assigns upon notice
to, but without the need to obtain the consent of, such lessor or if such
lessor's consent is required it cannot be unreasonably withheld;
(d) 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, and the Seller has
received no notice that an event of default has occurred thereunder, and, to the
Seller's knowledge, there exists no condition that, but for the passage of time
or the giving of notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default by the
lessee to the holder of the Mortgage; and (B) provides that no notice of
termination given under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such holder and the
lessor has offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond the
Stated Maturity Date of the related Mortgage Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee without
the prior written consent of the mortgagee under such Mortgage Loan, and any
such action without such consent is not binding on such mortgagee, its
successors or assigns; provided, however, that termination or cancellation
without such consent may be binding on the mortgagee if (i) an event of default
occurs under the Ground Lease, (ii) notice is provided to the mortgagee and
(iii) such default is curable by the mortgagee as provided in the Ground Lease
but remains uncured beyond the applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property that served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, except, in each case, for liens insured against by
the Title Policy referred to herein, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically
disclosed in an exception on Schedule A attached hereto to another
representation and warranty made by the seller in this Exhibit 2, at
origination, each Mortgage Loan complied with all applicable federal, state and
local statutes and regulations. Each Mortgage Loan complied with (or is exempt
from) all applicable usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
(29) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the
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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage"
as such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the Lender incurred in connection with (i)
the defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased
until a date that is more than two years after the Closing Date or provides that
it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that
has a Stated Principal Balance as of the Cut-Off Date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not, as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each
Mortgage Loan, the related Mortgage Loan Documents require the related
Mortgagor, in some cases at the request of the lender, to provide to the holder
of such Mortgage Loan operating statements and rent rolls not less frequently
than annually (except if the Mortgage Loan has an outstanding principal balance
of less than or equal to $3,500,000 as of the Cut-Off Date or the related
Mortgaged Property has only one tenant, in either of which cases, the Mortgage
Loan Documents require the Mortgagor, in some cases at the request of the
lender, to provide to the holder of such Mortgage 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.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
SCHEDULE A TO EXHIBIT 2
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Note: The Mortgage Loans known as Century XXI, West Road Corporate Center and
Xxxxxxxx Bridge Rd. are structured with the related promissory note secured by a
guaranty agreement (rather than a deed of trust), which guaranty agreement from
the related property owner, in favor of the lender covers all of the obligations
under the related promissory note. All of the obligations under the related
guaranty agreement are secured by an indemnity deed of trust ("IDOT"). With
respect to certain of the representation and warranties, with respect to these
Mortgage Loans, statements regarding the borrower relate to the guarantor, as
the owner of the respective Mortgaged Property.
ID# Mortgage Loan(s) Description of Exception
--------------------------------------------------------------------------------
Exception to representation #2 - Whole Loan; Ownership of Mortgage Loans
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The Mortgage Loan is not a whole loan but is
one of 13 pari passu A notes, each
evidencing an interest in a whole loan with
an original aggregate principal balance of
$925,000,000.
111 Enterprise Xxxxxxx
Avenue Cashiering sub-servicing rights have been
retained by a third party (CBRE).
--------------------------------------------------------------------------------
Exception to representation #4 - Lien; Valid Assignment
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx In addition to the Mortgage Loan, the
related Mortgaged Property secures 12 pari
passu A notes in the aggregate principal
balance of $800,000,000.
A tenant (Deutsche Bank) has a right of
first offer on its leased premises. This
right of first offer is not triggered (i) by
the sale of the Mortgaged Property as part
of a portfolio sale in which the Mortgaged
Property constitutes less than 25% of the
entire portfolio or (ii) by foreclosure or
deed-in-lieu of foreclosure. This right of
first offer is not extinguished by
foreclosure; however, it does not apply in
connection with a foreclosure or a
deed-in-lieu of foreclosure.
42 Whispering Palms - With respect to the mobile homes securing
Evergreen these Mortgaged Properties, a Florida
statute (Fla. Stat. Xxx. ss. 723.071)
confers a right of first refusal to mobile
home owners (through the mobile home park's
000 Xxxxx Xxxx MHC owners' association) with respect to future
sales of the land. This right of first
refusal is not extinguished by foreclosure;
187 Enchanted Lakes MHC however, it does not apply in connection
and RV Resort with a foreclosure or a deed-in-lieu of
foreclosure.
182 Hillside MHC
With respect to the Hillside MHC loan, the
borrower's sole member's non-managing member
has the above right.
--------------------------------------------------------------------------------
53 Rampart Village A tenant (Gold's Gym) has a right of first
Center refusal on its leased premises. This right
of first refusal is not extinguished by
foreclosure; however, it does not apply in
connection with a foreclosure or a
deed-in-lieu of foreclosure.
--------------------------------------------------------------------------------
00 Xxx Xxxx Xxxxxxx A tenant has a right of first refusal on its
leased premises, which were not included in
the valuation of the Mortgaged Property by
the lender. This right of first refusal is
not extinguished by foreclosure; however, it
does not apply in connection with a
foreclosure or a deed-in-lieu of
foreclosure.
--------------------------------------------------------------------------------
110 Lowe's Macedon A tenant (Xxxx'x Home Center) has a right of
first refusal on the entire Mortgaged
Property. This right of first refusal is not
extinguished by foreclosure; however, it
does not apply in connection with a
foreclosure or a deed-in-lieu of
foreclosure.
--------------------------------------------------------------------------------
201 Walgreen's - A tenant (Walgreen's) has a right of first
Swansboro, NC refusal on the entire Mortgaged Property.
This right of first refusal is not
extinguished by foreclosure; however, it
does not apply in connection with a
foreclosure or a deed-in-lieu of
foreclosure.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exception to representation #5 - Assignment of Leases and Rents
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx In addition to the Mortgage Loan, the
related Mortgaged Property secures 12 pari
passu A notes in the aggregate principal
balance of $800,000,000.
The Mortgage Loan Seller has not done, by
act or omission, anything that would
materially impair the coverage under the
title policy, but no representation can be
made with respect to the acts or omissions
of the holder of the mortgage.
--------------------------------------------------------------------------------
Exception to representation #6 - Mortgage Status; Waivers and Modifications
--------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx The domestic terrorism insurance coverage
requirement in the loan documents has been
waived.
111 Enterprise Xxxxxxx
Avenue
00 Xxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx MH
and RV Resort
198 Vista Lakes
--------------------------------------------------------------------------------
Exception to representation #7 - Condition of Property; Condemnation
--------------------------------------------------------------------------------
110 Lowes Macedon The lender did not obtain an engineering
report for the related Mortgaged Property,
106 652 Hempstead Tpke. because the related improvements are not
included in the Mortgaged Property. The
related Mortgaged Property is land, which
has been ground leased to the related
tenants. The tenants are therefore
responsible for the maintenance of the
improvements.
000 Xxxxxxxx Xxxxxx Xx. The lender did not obtain an engineering
report for a portion of the related
Mortgaged Property, which consists of two
non-contiguous parcels, because the related
improvements in such portion are not
included in the Mortgaged Property. The
related Mortgaged Property with respect to
such portion is land, which has been ground
leased to the related tenants. The tenants
are therefore responsible for the
maintenance of the improvements.
--------------------------------------------------------------------------------
Exception to representation #8 - Title Insurance
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx In addition to the Mortgage Loan, the
related Mortgaged Property secures 12 pari
passu A notes in the aggregate principal
balance of $800,000,000.
144 Shoppes at Parish Access to the related Mortgaged Property is
Place via a private road. Access to the related
Mortgaged Property is insured by the related
title insurance policy.
198 Shoppes at Vista Lakes
--------------------------------------------------------------------------------
Exception to representation #11 - Trustee under Deed of Trust
--------------------------------------------------------------------------------
144 Shoppes at Parish The trustee under the deed of trust is
Place entitled to reimbursement by the grantor for
actual, reasonable expenses incurred by it
in the performance of its duties.
--------------------------------------------------------------------------------
Exception to representation #13 - Loan Document Status
--------------------------------------------------------------------------------
114 Promenade at Carolina The Mortgaged Property is the subject of an
Pavilion Operation and Easement Agreement among the
borrower and the owners of two adjacent
properties, that restricts the borrower from
leasing space to office-related tenants. One
of the tenants, a temporary employee
placement firm, may qualify as a tenant
types that is not "normally found in
community-oriented retail shopping centers"
and therefore may violate the Operation and
Easement Agreement. The related loan
documents provide for a springing escrow in
the event that the tenant is evicted as a
result of a violation of the Operation and
Easement Agreement.
--------------------------------------------------------------------------------
Exception to representation #14 - Insurance
--------------------------------------------------------------------------------
All Mortgage Loans The related loan documents for various
Mortgaged Properties generally require
property insurance for the full insurable
value of the mortgaged property against fire
and other hazards that would be covered by a
standard extended and all-risk insurance
policy issued and provide that the lender
may require windstorm insurance at the
lender's option but do not specifically
mention hail, lightning, explosion, riot,
riot attending a strike, civil commotion,
aircraft, vehicles, smoke and, in some
cases, windstorm insurance. With respect to
Mortgaged Properties located in an area
designated by Federal Emergency Management
Agency as a special flood hazard area, the
flood insurance required under the related
Mortgage Loan documents is generally in an
amount equal to the lesser of (a) the unpaid
principal balance of the Mortgage Loan or
(b) the maximum amount available under the
appropriate National Flood Insurance
Administration Program. Certain of the
related liability insurance policies (or
related certificates of insurance) may
provide that in the event such related
insurance policies are terminated or
cancelled, the insurer shall endeavor to
provide Mortgagee notice, but do not
expressly indicate that no cancellation or
termination occurs until notice is given.
--------------------------------------------------------------------------------
46 Las Palmas de la The property insurance policy (or related
Quinta certificate of insurance) provides that in
the event such insurance policy is
terminated or cancelled, the insurer shall
000 Xxx Xxxxxxx MHC endeavor to provide Mortgagee notice, but
does not expressly indicate that
no cancellation or termination occurs until
notice is given.
161 Papermill Storage
144 Shoppes at Parish
Place
198 Shoppes at Vista Lakes
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The borrower's obligation to maintain the
insurance required in the loan documents is
suspended so long as the tenant (Deutsche
Bank) satisfies the insurance requirements
under the lease.
--------------------------------------------------------------------------------
7 Bangor Mall If TRIEA is not in effect, a stand alone
terrorism insurance policy having a
deductible of up to $5,000,000 is permitted,
1 West Town Mall to the extent commercially available, in
lieu of including terrorism coverage as part
of the all risk insurance policy.
--------------------------------------------------------------------------------
43 Xxxxx Colorado The loan documents do not contain a
Portfolio terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Insurance covering
foreign acts of terrorism is currently in
place.
--------------------------------------------------------------------------------
42 Whispering Palms - The loan documents do not contain a
Evergreen terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained.
--------------------------------------------------------------------------------
104 777 MacArthur The loan documents do not contain a
Industrial terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Terrorism
insurance is currently in place.
--------------------------------------------------------------------------------
110 Lowe's Macedon: The loan documents do not require such forms
of insurance for so long as the Mortgaged
Property is self-insured by the tenant
pursuant to the terms of the lease. The
tenant has elected to self-insure the
property in accordance with the terms of the
lease.
--------------------------------------------------------------------------------
138 Val Vista Winter The loan documents do not contain a
Village RV Resort: terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Terrorism
insurance is currently in place.
--------------------------------------------------------------------------------
201 Walgreen's - The loan documents do not require such forms
Swansboro, NC of insurance for so long as the Mortgaged
Property is self-insured by the tenant
pursuant to the terms of the lease. The
tenant has elected to self-insure the
property in accordance with the terms of the
lease.
--------------------------------------------------------------------------------
21 Century XXI The domestic terrorism insurance coverage
requirement in the loan documents has been
waived.
000 Xxxxxxxxx Xxxxxx
111 Enterprise Xxxxxxx
Avenue
00 Xxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx XX
and RV Resort
198 Vista Lakes
142 Victory Village MHC
--------------------------------------------------------------------------------
175 Halcyon Village MHC The loan documents do not require insurance
against acts of domestic terrorism.
161 Papermill Storage
114 Promenade at Carolina
Pavilion
197 Royal Coach Village
MHP
31 Frost Bank - Corpus
Christi
136 Rossmore Industrial
85 Lago Vista MHC
00 Xxxxxxx Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxx
00 Xxx Xxxx Xxxxxxx
000 Xxx Xxxxxxx MHC
46 Las Palmas de la
Quinta
--------------------------------------------------------------------------------
171 Sugar Mill MHC
198 Shoppes at Vista Lakes
--------------------------------------------------------------------------------
182 Hillside MHC The loan documents do not require terrorism
insurance.
106 652 Hempstead Tpke
--------------------------------------------------------------------------------
187 Enchanted Lakes MH The lender has accepted cash value-based
and RV Resort insurance coverage, as opposed to insurance
for the full replacement cost less
appreciation. A non-recourse carveout
regarding related losses has been obtained.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exception to representation #16 - Mortgagor Bankruptcy
--------------------------------------------------------------------------------
The Seller makes no representation regarding
All Mortgage Loans the bankruptcy or insolvency of any tenant
at a Mortgaged Property.
--------------------------------------------------------------------------------
Exception to representation #17 - Leasehold Estate
--------------------------------------------------------------------------------
110 Lowe's Macedon In the event of a casualty, in the event
that the tenant under the ground lease
elects not to rebuild the buildings and
improvements and terminates the ground
lease, the landlord under the ground lease
is entitled to a share of the insurance
proceeds equal to the annual fixed rent that
would otherwise have been due under the
ground lease for the period from the date of
termination of the ground lease to the date
the then current term of the ground lease
would have otherwise expired had it not been
terminated.
--------------------------------------------------------------------------------
201 Walgreen's - The ground lease commenced on March 5, 2007
Swansboro, NC and expires on March 5, 2032 (300 months).
The lessee has ten successive options to
extend the term of the ground lease, each
for an additional five years. Such options
to extend the ground lease are exercised
automatically, unless lessee gives 80 days
prior written notice of its intent not to
extend. The lessee also has an option to
terminate the ground lease on March 5, 2022
(as of the last day of the 180th month) or
at the end of any five year period
thereafter. Such option to terminate may be
exercised by giving 80 days written notice.
--------------------------------------------------------------------------------
Exception to representation #24 - Cross-collateralization
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The Mortgage Loan is cross-collateralized
with related pari passu loans that are not a
part of the Trust Fund.
--------------------------------------------------------------------------------
Exception to representation #25 - Release of Mortgaged Property
--------------------------------------------------------------------------------
43 Xxxxx Colorado Following the related defeasance lockout
Portfolio period, the borrower is permitted to release
the related Mortgaged Properties in
conjunction with partial defeasance subject
to certain conditions, including (i) the
borrower depositing defeasance collateral
equal to 110% of the allocated loan amount
for the released property; (ii) the
aggregate DSCR of the remaining properties
is equal to the greater of (a) the debt
service coverage ratio for the properties
immediately prior to the release and (b)
1.40x; and (iii) receipt of a "no downgrade"
confirmation from the applicable Rating
Agencies.
--------------------------------------------------------------------------------
Exception to representation #27 - No Material Defaults
--------------------------------------------------------------------------------
53 Rampart Village The related borrower has certain
Center post-closing covenants with respect to
environmental or engineering repairs which
have not yet been fulfilled.
000 Xxx Xxxxx Xxxxxx
Xxxxxxx RV Resort
00 Xxxx Xxxx
00 Xxxxxxxxxx Xxxxx -
Xxxxxxxxx
000 Xxx Xxxxxxx MHC
12 Crowne Plaza - Addison
47 Collegiate Commons
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exception to representation #29 - Local Law Compliance
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The Mortgaged Property has certain
violations with the New York State
Department of Labor and a sidewalk
violation. The tenant at the Mortgaged
Property is responsible for clearing such
violations.
000 Xxxxxx Xxxxxxxx Xxxxxx At 35.8 feet, the related Mortgaged Property
exceeds the35-foot height limitation in the
applicable zoning code. The lender has
obtained a non-recourse carveout from the
borrower in connection with such violation.
--------------------------------------------------------------------------------
Exception to representation #30 - Junior Liens
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx In addition to the Mortgage Loan, the
related Mortgaged Property secures 12 pari
passu A notes in the aggregate principal
balance of $800,000,000.
2 00 Xxxx Xxxxxx The loan documents permit the equity owners
of the borrower to obtain future mezzanine
financing subject to satisfaction of
7 Bangor Mall conditions contained in the loan documents.
12 Crowne Plaza - Addison
17 The Links at Cadron
Valley
00 Xxxxxxx Xxx
0 Xxxx Xxxx Mall
--------------------------------------------------------------------------------
Exception to representation #35 - Due on Sale
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The loan documents permit the equity owners
of the borrower to obtain future mezzanine
financing subject to satisfaction of
7 Bangor Mall conditions contained in the loan documents.
Any transfer of the equity interests in
connection with a foreclosure of the
mezzanine financing would not trigger the
"due on sale" provisions.
00 Xxxxxx Xxxxx - Xxxxxxx
17 The Links at Cadron
Valley
00 Xxxxxxx Xxx
0 Xxxx Xxxx Mall
--------------------------------------------------------------------------------
Exception to representation #36 - Non-Recourse Exceptions
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The recourse carveout guarantor is an
entity, rather than a natural person.
7 Bangor Mall
00 Xxxx Xxxx Xxxxxxxxx
Xxxxxx
000 Xxxxx Coach Village
MHP
000 Xxxxxxxx'x -
Xxxxxxxxx, XX
00 Xxx Xxxx Xxxxxxx
17 The Links at Cadron
Valley
114 Promenade at Carolina
Pavilion
000 Xxxxxxxx Xxxxxx Xx.
0
Xxxx Xxxx Mall
--------------------------------------------------------------------------------
Exception to representation #44 - Terrorism Insurance
--------------------------------------------------------------------------------
7 Bangor Mall If TRIEA is not in effect, a stand alone
terrorism insurance policy having a
deductible of up to $5,000,000 is permitted
1 West Town Mall in lieu of including terrorism coverage as
part of the all risk insurance policy.
--------------------------------------------------------------------------------
43 Xxxxx Colorado The loan documents do not contain a
Portfolio terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Insurance covering
foreign acts of terrorism is currently in
place.
--------------------------------------------------------------------------------
42 Whispering Palms - The loan documents do not contain a
Evergreen terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained.
--------------------------------------------------------------------------------
104 777 MacArthur The loan documents do not contain a
Industrial terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Terrorism
insurance is currently in place.
--------------------------------------------------------------------------------
110 Lowe's Macedon The loan documents do not require such forms
of insurance for so long as the Mortgaged
Property is self-insured by the tenant
pursuant to the terms of the lease. The
tenant has elected to self-insure the
property in accordance with the terms of the
lease.
--------------------------------------------------------------------------------
138 Val Vista Winter The loan documents do not contain a
Village RV Resort terrorism insurance requirement, but a
non-recourse carve-out regarding related
losses has been obtained. Terrorism
insurance is currently in place.
--------------------------------------------------------------------------------
201 Walgreen's - The loan documents do not require such forms
Swansboro, NC of insurance for so long as the Mortgaged
Property is self-insured by the tenant
pursuant to the terms of the lease. The
tenant has elected to self-insure the
property in accordance with the terms of the
lease.
--------------------------------------------------------------------------------
21 Century XXI The domestic terrorism insurance coverage
requirement in the loan documents has been
waived.
000 Xxxxxxxxx Xxxxxx
111 Enterprise Xxxxxxx
Avenue
00 Xxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx XX
and RV Resort
198 Vista Lakes
142 Victory Village MHC
--------------------------------------------------------------------------------
175 Halcyon Village MHC The loan documents do not require insurance
against acts of domestic terrorism.
161 Papermill Storage
114 Promenade at Carolina
Pavilion
197 Royal Coach Village
MHP
31 Frost Bank - Corpus
Christi
136 Rossmore Industrial
85 Lago Vista MHC
00 Xxxxxxx Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxx
00 Xxx Xxxx Xxxxxxx
000 Xxx Xxxxxxx MHC
46 Las Palmas de la
Quinta
--------------------------------------------------------------------------------
171 Sugar Mill MHC
198 Shoppes at Vista Lakes
182 Hillside MHC The loan documents do not require terrorism
insurance.
106 652 Hempstead Tpke
187 Enchanted Lakes MH The lender has accepted cash value-based
and RV Resort insurance coverage, as opposed to insurance
for the full replacement cost less
appreciation. A non-recourse carveout
regarding related losses has been obtained.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exception to representation #45 - Operating Statements and Rent Rolls
--------------------------------------------------------------------------------
2 00 Xxxx Xxxxxx The loan documents do not require quarterly
leasing reports (including rent rolls) so
long as the Deutsche Bank lease is in
effect. However, the borrower is still
required to submit quarterly reports
containing certain financial information.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: General Electric Capital Corporation
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: GENERAL ELECTRIC CAPITAL CORPORATION
By: ___________________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxx (the "Seller"), being duly empowered and authorized
to do so, does hereby make, constitute and appoint Capmark Finance Inc., having
an address of 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Master
Servicer"), Centerline Servicing Inc., having an address of 0000 Xxxxx X'Xxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxx X. Xxxxx (the "Special
Servicer"), and LaSalle Bank National Association, having an address of 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services--MS 2007-IQ16 (the "Trustee"), as the true and
lawful attorneys-in-fact for the undersigned, in its name, place and stead, and
for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of
the failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee and the Paying Agent with
respect to the Trust and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage File (so long as
original counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November 2007.
Witnessed by: GENERAL ELECTRIC CAPITAL CORPORATION
___________________________ By:________________________
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for
said county, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person acted and executed the
instrument. Witness my hand and official seal.
_______________________________
Commission Expires:
EXHIBIT K-3
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT III
(PCFII)
MORTGAGE LOAN PURCHASE AGREEMENT
(PCFII LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between Principal Commercial Funding II, LLC (the "Seller"),
and Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $256,993,544. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price in the Bill of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated November 29, 2007, will be executed by the Seller and the Capmark Master
Servicer, in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to the Custodian on
behalf of the Trustee, on behalf of the Purchaser, on or prior to the Closing
Date, the Mortgage Note (as described in clause (a) below) for each Mortgage
Loan and on or prior to the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached hereto as Exhibit
4 in favor of the Trustee, the applicable Master Servicer and the applicable
Special Servicer to empower the Trustee, the applicable Master Servicer and, in
the event of the failure or incapacity of the Trustee and the applicable Master
Servicer, the applicable Special Servicer, to submit for recording, at the
expense of the Seller, any mortgage loan documents required to be recorded as
described in the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage Files (so long as original counterparts have previously been delivered
to the Trustee). The Seller agrees to reasonably cooperate with the Trustee, the
applicable Master Servicer and the applicable Special Servicer in connection
with any additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The parties hereto agree that
no such power of attorney shall be used with respect to any Mortgage Loan by or
under authorization by any party hereto except to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to the
Custodian on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions and additional time periods as
are permitted by this Section) with respect to each Mortgage Loan (each, a
"Mortgage File"). (The Seller acknowledges that the term "without recourse" does
not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of LaSalle Bank
National Association, as Trustee for Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit and indemnity, with a copy of the Mortgage
Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "LaSalle Bank National Association, as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Custodian on behalf of the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Custodian on behalf of the Trustee or the agents
of either may submit or cause to be submitted for recordation at the expense of
the Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust or the applicable Primary Servicer
(on behalf of the Trustee), as applicable, after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer or the
applicable Primary Servicer, as the case may be, and use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement of the above notice by the bank (with a copy of
such acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit. After the Closing Date, with respect to any letter of
credit that has not yet been assigned to the Trust (or whose beneficiary has not
yet been changed to the Trust), upon the written request of the applicable
Master Servicer or the applicable Primary Servicer, the Seller will draw on such
letter of credit as directed by such Master Servicer or such Primary Servicer in
such notice to the extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the applicable Primary Servicer shall be
deemed a delivery to the applicable Master Servicer and satisfy Seller's
obligations under this sub-paragraph. Each of the foregoing items shall be
delivered by the Seller in electronic form, to the extent such document is
available in such form and such form is reasonably acceptable to the applicable
Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Custodian (on behalf of the Trustee) or the applicable Master Servicer as
set forth herein, subject to the requirements of the Primary Servicing
Agreement. The Seller's and Purchaser's records shall reflect the transfer of
each Mortgage Loan from the Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency to examine and audit all books, records and files pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and shall not be conducted in a
manner that is disruptive to the Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations and audits,
the Seller will make available to such representatives of any of the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Custodian, the
applicable Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Mortgage Loans and the
terms of this Agreement, and the Seller shall cooperate fully with any such
examination and audit in all material respects. On or prior to the Closing Date,
the Seller shall provide the Purchaser with all material information regarding
the Seller's financial condition and access to knowledgeable financial or
accounting officers for the purpose of answering questions with respect to the
Seller's financial condition, financial statements as provided to the Purchaser
or other developments affecting the Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting the Seller in any
material respect. Within 45 days after the Closing Date, the Seller shall
provide the applicable Master Servicer or Primary Servicer, if applicable, with
any additional information identified by such Master Servicer or Primary
Servicer, if applicable, as necessary to complete the CMSA Property File, to the
extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware. The Seller has the requisite power and authority and
legal right to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of,
this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of
the Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization, limited
liability company operating agreement or by-laws, (B) any term or
provision of any material agreement, contract, instrument or indenture
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Seller or its
assets, except where in any of the instances contemplated by clauses
(B) or (C) above, any conflict, breach or default, or creation or
imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect
its ability to perform its obligations and duties hereunder or result
in any material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery
by, or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of
November 15, 2007, between the Seller, the Purchaser, the Underwriters
and the Initial Purchaser (the "Indemnification Agreement")) contained
in the Disclosure Information (as defined in the Indemnification
Agreement), the Memorandum and the Prospectus Supplement as of the
Time of Sale (as defined in the Indemnification Agreement) (i) does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and
(ii) (other than the Memorandum) complies with the requirements of and
contains all of the applicable information required by Regulation AB
(as defined in the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter
into and consummate all transactions contemplated by this Agreement.
The Purchaser has duly and validly authorized the execution, delivery
and performance of this Agreement and has duly and validly executed
and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the Seller, constitutes the
valid and binding obligation of the Purchaser, enforceable against it
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(xi) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the
Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws
or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach
of, any material agreement, contract, instrument or indenture to which
the Purchaser is a party or that may be applicable to the Purchaser or
its assets.
(xiii) The Purchaser's execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, rule, writ, injunction,
order or decree of any court, or order or regulation of any federal,
state or municipal government agency having jurisdiction over the
Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the
operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(xiv) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the
Mortgage Loans, the issuance of the Certificates, the execution,
delivery or enforceability of this Agreement or have an effect on the
financial condition of the Purchaser that would materially and
adversely affect the ability of the Purchaser to perform its
obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchaser and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or consummation of any of the
transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Custodian on behalf of the Trustee pursuant to
Section 2 is not delivered as and when required (and including the expiration of
any grace or cure period), is not properly executed or is defective on its face,
or if there is a breach of any of the representations and warranties required to
be made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Document Defect or Material Breach had
occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the debt
service coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement (determined as provided in the definition of Debt Service Coverage
Ratio in the Pooling and Servicing Agreement, except that net cash flow for such
four calendar quarters, rather than year-end, shall be used) is equal to the
greater of (x) the debt service coverage ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (x) the current loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(y) 75%. The determination of the applicable Master Servicer as to whether
either of the conditions set forth above has been satisfied shall be conclusive
and binding in the absence of manifest error. The applicable Master Servicer
will be entitled to cause, or direct the Seller to cause, to be delivered to
such Master Servicer at the Seller's expense (i) an Appraisal of any or all of
the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (2) above has been satisfied, in each case at the
expense of the Seller if the scope and cost of the Appraisal is approved by the
Seller (such approval not to be unreasonably withheld) and (ii) an Opinion of
Counsel that not requiring the repurchase of each such Cross-Collateralized Loan
will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling
and Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the applicable Master Servicer or the applicable Special
Servicer, as applicable, shall be required to notify the Seller of the discovery
of the Material Document Defect or Material Breach and the Seller shall be
required to follow the procedures set forth in this Agreement to correct or cure
such Material Document Defect or Material Breach or purchase the REO Property at
the Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the applicable Special Servicer will not
receive a Liquidation Fee in connection with such liquidation or sale or any
portion of the Work-Out Fee that accrues after the Seller receives notice of a
Material Document Defect or Material Breach until a final determination has been
made, as set forth in the prior paragraph, as to whether the Seller is or was
obligated to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the applicable Special Servicer,
as applicable, in connection with modifying a Mortgage Loan pursuant to Section
2.3 of the Pooling and Servicing Agreement in order for such Mortgage Loan to be
a "qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization, limited liability company operating agreement and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of Delaware dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Delaware law and has
full corporate or organizational power and authority to enter into and
perform its obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation
by the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes
a default under, the organizational documents of the Seller, (B) to
the knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or
indenture, to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument, other
than pursuant to this Agreement, or (C) conflicts with or results in a
breach or violation of any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority
having jurisdiction over the Seller or its assets, except where in any
of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien,
charge or encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is
a party, or threatened against the Seller, (a) asserting the
invalidity of this Agreement or (b) which materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by (1) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium,
(2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (4)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate and limited liability company laws of the State of Delaware and
the State of New York, as applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as
Exhibit 3.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee the disclosure required as to
the Seller itself including, without limitation, the disclosure required under
Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall
use its best efforts to deliver proposed disclosure language relating to any
such event described under Items 1117 and 1119 of Regulation AB and Item 1.03 to
Form 8-K to the Trustee and the Purchaser within one Business Day and in any
event no later than two Business Days of the Seller becoming aware of such
event. The obligation of the Seller to provide the above-referenced disclosure
materials will terminate upon notice or other written confirmation from the
Purchaser or the Trustee that the Trustee filing a Form 15 with respect to the
Trust as to that fiscal year in accordance with Section 13.8 of the Pooling and
Servicing Agreement or the reporting requirements with respect to the Trust
under the Securities Exchange Act of 1934, as amended, have otherwise been
automatically suspended (as to which, in each case, the Purchaser shall give
notice to the Seller). The Seller hereby acknowledges that the information to be
provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Principal Commercial Funding II, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000,
Attention: Xxxxxxxx Xxxxxx (with a copy to the attention of Xxxxxx X. Xxxxxxxxx,
Esq., 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 50392).
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
PRINCIPAL COMMERCIAL FUNDING II, LLC
BY: PRINCIPAL REAL ESTATE INVESTORS,
LLC, as its Manager
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Director of Finance
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
4 PCF II Hilton Daytona Beach $94,730,000 000 Xxxxx Xxxxxxxx Xxxxxx
9 PCF II Marriott Columbia $41,300,000 0000 Xxxxxxx Xxxxxx
14 PCF II Hilton Antlers Colorado Springs $36,432,000 0 Xxxxx Xxxxxxx Xxxxxx
34 PCF II Summit Professional Plaza $15,925,000 0000 Xxxxxx Xxxxxxx
49 PCF II 00 Xxxxxx Xxxxxx $11,000,000 00 Xxxxxx Xxxxxx
51 PCF II Paloma Village Center $10,500,000 6330, 6360 & 0000 Xxxxx Xxxxxxxx Xxxxxx
56 PCF II 000 Xxxxxxx Xxxxxx $9,992,806 000 Xxxxxxx Xxxxxx
68 PCF II Wellington Corporate Center $8,600,000 1200, 1300 & 0000 Xxxxxxxxx Xxxxxx Xxx
105 PCF II 0000 Xxxxxxx Xxxxxx $5,500,000 0000 Xxxxxxx Xxxxxx
148 PCF II San Diego Spectrum $3,700,000 0000 Xxxxxxxxx Xxxxx
149 PCF II 0000 Xxxx Xxxxx Xxxxx $3,697,029 0000 Xxxx Xxxxx Xxxxx
154 PCF II 000 Xxxxxxxxxxxx Xxxxx $3,495,850 000 Xxxxxxxxxxxx Xxxxx
157 PCF II Hertz Equipment Rental Facility $3,400,000 000 Xxxxx Xxxxx 83
158 PCF II Mill Pond Shoppes $3,400,000 000 Xxxxxx Xxxxxx Xxxxxx Xxxx
181 PCF II 000 Xxxxxxx Xxxxx $2,648,094 000 Xxxxxxx Xxxxx
000 XXX XX Xxxxxx Xxxxxx Xxxxxxx $1,372,766 620, 626 & 000 Xxxx Xxxxxx Xxxxxx
226 PCF II Xxxxxxxxxx Retail $1,300,000 0000 Xxxxxxxxx Xxxxx Xxxxxxx, C-1 & C-2
Totals and Weighted Averages: $256,993,544
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------- -----------------------------------------------------------------------------------
4 Xxxxxxx Xxxxx XX 00000 10/05/2007 11/01/2017 No
9 Xxxxxxxx XX 00000 10/05/2007 11/01/2017 No
14 Xxxxxxxx Xxxxxxx XX 00000 10/05/2007 11/01/2017 No
34 Xxxxxxxxx XX 00000 08/30/2007 09/01/2017 Xx
00 Xxxxxxxxx XX 00000 09/13/2007 10/01/2017 No
51 Xxxxxx XX 00000 08/23/2007 09/01/2017 No
56 Xxxxxxxxx XX 00000 09/04/2007 10/01/2017 No
68 Xxxxxxxxxx XX 00000 09/27/2007 10/01/2017 No
000 Xxxxx Xxxxx XX 00000 08/31/2007 09/01/2017 No
000 Xxx Xxxxx XX 00000 09/19/2007 10/01/2017 No
000 Xxxxx Xx Xxxxxxx XX 00000 09/24/2007 10/01/2017 No
000 Xxxxxxxx XX 00000 09/18/2007 10/01/2017 No
000 Xxxxx Xxxx XX 00000 08/29/2007 09/01/2017 Yes
000 Xxxx Xxxxx XX 00000 07/31/2007 08/01/2017 No
000 Xxxxxxxxxx XX 00000 09/06/2007 10/01/2017 No
000 Xxxxxxxxx XX 00000 08/31/2007 09/01/2017 No
226 Xxxxxxxx XX 00000 09/14/2007 10/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
------------- ----------------------------------------------------------
4 120 120 360 6.510%
9 120 120 360 6.510%
14 120 120 360 6.510%
34 120 118 IO 6.180%
49 120 119 IO 6.340%
51 120 118 IO 6.300%
56 120 119 360 6.520%
68 120 119 360 6.320%
105 120 118 360 6.250%
148 120 119 IO 6.790%
149 120 119 360 6.120%
154 120 119 300 6.370%
157 120 118 360 6.070%
158 120 117 360 6.340%
181 120 119 360 6.520%
224 120 118 360 6.520%
226 120 119 360 6.350%
120 119 360 6.384%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan and (ii) the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
18 months prior to the Closing Date as set forth on Schedule A to this Exhibit
2, each Mortgaged Property is in good repair and condition and all building
systems contained therein are in good working order (or adequate reserves
therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) 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, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the 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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage 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.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
INDIVIDUAL MORTGAGE LOANS
Principal Commercial Funding II - IQ-16
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Rep. No. 12- Environmental Conditions
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Loan No. 756123 (675 Almanor Avenue)
------------------------------------
Explanation - An area of contaminated soil was discovered near the
northeastern corner of the site building on the adjoining 000 Xxxxxxx Xxxxxx
property. The source of the contamination was reportedly disposal of
tetracholorethylene (PCE) into a dumpster by a former tenant of the subject
property from 1968 through 1974. The soil and groundwater in the vicinity of
the former dumpster was subsequently found to be impacted by
tetracholoretheylne (PCE), trichloroethylene (TCE), and 1,2 dichloroethene
(Cis-1,2-DCE). In 1998, a groundwater monitoring program was implemented and
an excavation was conducted to remove the impacted soil (1,181 tons).
Following the soil excavation, the Regional Water Quality Control Board
selected natural attenuation as the preferred method for managing the
remaining contamination at the site. Based on the status, no further
investigation is recommended at this time. In the event the RWQCB requires
anything beyond natural attenuation, the borrower is required to post 110%
of the estimated costs with Lender until all such work is complete. If the
borrower doesn't post any required additional money, then the loan will
become recourse the sponsor, Xxxx Xxxxxxxxx.
Loan No. - 756184 (45 Xxxxxx Avenue)
------------------------------------
Explanation - The environmental report disclosed that four USTs were
identified at the Property during the review of the regulatory database
report and previous documentation. These tanks consisted of a 750-gallon No.
2 fuel oil, 2,000-gallon diesel fuel, a 3,000-gallon No. 2 fuel oil, and a
2,000-gallon gasoline USTs. The 3,000-gallon No. 2 fuel oil UST was
reportedly registered with the NYSDEC, but was never installed at the
Property. The 2,000-gallon diesel fuel and 750-gallon No. 2 fuel oil USTs
were reportedly removed from the Property in 1991 and 1998, respectively.
Municipal documentation previously indicated that the 2,000-gallon gasoline
UST was installed at the Property; however, there were no reports of the
closure of this tank system. LandAmerica Assessment Corporation ("LAC"), the
current environmental consultant, was not provided with any documentation
regarding the closure/removal of these USTs or any subsurface investigations
performed in the areas of the tanks, therefore the potential for these tanks
to have adversely impacted the Property cannot be completely dismissed.
However, per the consultant, because the exact locations of these tanks are
not known, further investigation is not practical at this time. If these
tanks are identified in the future and found to have impacted the site, it
is LAC's opinion that a worst-case cost for cleanup of related
contamination, if required, would not exceed $250,000. The borrower has
escrowed with lender $312,500, which is equal to 125% of this estimate.
---------------------------------------------------------------------------
Rep. Xx. 00 - Xxxxx Xxx Xxxxxxxxxx
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Xxxx Xx. - 000000 (675 Almanor Avenue)
--------------------------------------
Explanation -The property is legal non-conforming with respect
to parking. Zoning has a maximum allowed parking of 1 per 250
sq. ft. and the property has 260 spaces (exceeding the parking
maximum by 24 spaces). The property can be restored to its
existing state unless there is casualty damage of more than 50%
of the structure. The LTV for the property is 62.1%
Loan No. - 756127 (Hertz Equipment Rental Facility)
---------------------------------------------------
Explanation -The property is legal non-conforming with respect to violation
of building setback lines on the north side of the property. The current
required front setback line is 35 feet and the property has a front setback
of 27.54 feet, thus it exceeds the requirement by 7.46 feet. The property
can be rebuilt to its current state unless there is casualty damage of more
than 50% of the cost of replacement of the entire building. If the cost of
restoration of such damaged building does not exceed 50% of the cost of
replacement of the entire building, no repairs or reconstruction shall be
made unless such restoration is commenced within one year from the date of
casualty. The property contains two buildings, the main property is 25,650
sq. ft. and there is a small office building of approximately 1,152 sq. ft.
on the northern edge of the property. This building was not included in the
underwriting of the loan. The setback violation only affects this property.
Loan No. - 756184 (45 Xxxxxx Avenue)
------------------------------------
Explanation -The property is legal non-conforming with respect to floor area
ratio restrictions and parking. The current maximum floor area ratio
requirement is 35%. The approximate floor area ratio is 49.73%. The property
requires 341 parking spaces and there are 264 parking spaces (deficient 77
spaces). A building can be restored to its existing state unless there is
casualty damage of more than 50% of the structure. Ordinance and Law
coverages A, B & C were obtained. The property contains two buildings which
are fully sprinklered. The LTV for the property is 67.1%.
Loan No. - 756196 (711 Distribution Way)
----------------------------------------
Explanation - The property is legal non-conforming with respect to parking.
Zoning requires 49 spaces, and the property has 43 spaces (deficient 6
spaces). The property can be restored to its existing state as long as the
repair of damage or destruction is started within one year of the date of
the partial destruction and is diligently carried to completion, and there
is casualty damage of less than 50% of the value of the structure, exclusive
of the foundation. The LTV for the property is 65.3% and the loan is
structured on a 25 year amortization.
---------------------------------------------------------------------------
Rep. Xx. 00 - Xxxxxxxx xxx Xxxxxxx
---------------------------------------------------------------------------
Xxxx Xx. - 000000 (675 Almanor Avenue)
--------------------------------------
Explanation -The Certificate of Occupancy has not been received for
Xxxxxxxxx'x Institute. A recourse carve-out provision was added for any loss
or damage to Lender due to failure to obtain the permanent Certificate of
Occupancy.
---------------------------------------------------------------------------
Rep. No. 36 - Non-Recourse Exceptions
---------------------------------------------------------------------------
Loan No. - 756156 (Mill Pond Shoppes)
-------------------------------------
Explanation -The Mortgage Loan does not have a natural person liable for any
of the recourse carve-outs.
Loan No. - 756188 (Summit Professional Plaza)
---------------------------------------------
Explanation -The Mortgage Loan does not have a natural person liable for any
of the recourse carve-outs. The recourse carve-outs are guaranteed by
Xxxxxxx Xxxxxxx, XX. The LTV is 61.8%.
Loan No. - 756261 (Hilton Daytona Beach)
----------------------------------------
Explanation - This loan does not have a natural person liable for any of the
recourse carve-outs. The LTV is 63%.
Loan No. - 756263 (Marriott Columbia)
-------------------------------------
Explanation - This loan does not have a natural person liable for any of the
recourse carve-outs. The LTV is 61%.
Loan No. - 756267 (Hilton Antlers Colorado Springs)
---------------------------------------------------
Explanation - This loan does not have a natural person liable for any of the
recourse carve-outs. The LTV is 66%.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None.
EXHIBIT 3
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, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: PRINCIPAL COMMERCIAL FUNDING II, LLC
BY: PRINCIPAL REAL ESTATE INVESTORS,
LLC, as its Manager
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: __________________________________
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx
00000, Attention: Xxxxxxxx Xxxxxx, (the "Seller"), being duly empowered and
authorized to do so, does hereby make, constitute and appoint Capmark Finance
Inc., having an address of 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Master Servicer"), Centerline Servicing Inc., having an address of 0000 Xxxxx
X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxx X. Xxxxx (the "Special
Servicer"), and LaSalle Bank National Association, having an address of 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services--MS 2007-IQ16 (the "Trustee") as the true and
lawful attorneys-in-fact for the undersigned, in its name, place and stead, and
for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event
of the failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a
limited power of attorney. The enumeration of specific items, rights, acts or
powers herein is not intended to, nor does it give rise to, and it is not
intended to be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November 2007.
Witnessed by: PRINCIPAL COMMERCIAL FUNDING II,
LLC
_________________________________ By:______________________________
Print Name: Name:
Title:
_________________________________ By:______________________________
Print Name: Name:
Title:
STATE OF____________________________)
COUNTY OF___________________________)
On __________________________, before me, a Notary Public in and
for said county, personally appeared ________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person acted and executed
the instrument. Witness my hand and official seal.
----------------------------
Commission Expires:
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
(RBC)
MORTGAGE LOAN PURCHASE AGREEMENT
(RBC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between Royal Bank of Canada, acting through its branch
located at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000-0000 (the "Seller") and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer (together with its
successors and assigns, the "Master Servicer"), NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer (the "Special
Servicer"), National Consumer Cooperative Bank, as Co-op Special Servicer,
LaSalle Bank National Association, as Trustee and Custodian, and Xxxxx Fargo
Bank, National Association, as Paying Agent, Certificate Registrar and
Authenticating Agent. In exchange for the Mortgage Loans and certain other
mortgage loans (the "Other Mortgage Loans") to be purchased by the Purchaser,
the Trust will issue to the Depositor pass-through certificates to be known as
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16 (the "Certificates"). The Certificates will be issued pursuant
to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended from time to time prior to the
Closing Date to reflect the actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Mortgage Loans and the Other Mortgage Loans
will have an aggregate principal balance as of the close of business on the
Cut-Off Date, after giving effect to any payments due on or before such date,
whether or not received, of approximately $165,728,100. The sale of the Mortgage
Loans shall take place on November 29, 2007 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by the Purchaser for the Mortgage Loans shall equal the amount
set forth as such purchase price in the Xxxx of Sale (as defined below). The
purchase price shall be paid to the Seller by wire transfer in immediately
available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the Master Servicer shall provide upon receipt
of such notice, written notice of such defeasance request to the Seller or its
assignee. Until such time as the Seller provides written notice to the contrary,
notice of a defeasance of a Mortgage Loan with Seller Defeasance Rights and
Obligations shall be delivered to the Seller pursuant to the notice provisions
of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated November 29, 2007, will be executed by the Seller and the Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to the Custodian on behalf of
the Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 4 in favor of
the Trustee, the Master Servicer and the Special Servicer to empower the
Trustee, the Master Servicer and, in the event of the failure or incapacity of
the Trustee and the Master Servicer, the Special Servicer, to submit for
recording, at the expense of the Seller, any mortgage loan documents required to
be recorded as described in the Pooling and Servicing Agreement and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files (so long as original counterparts have
previously been delivered to the Trustee). The Seller agrees to reasonably
cooperate with the Trustee, the Master Servicer and the Special Servicer in
connection with any additional powers of attorney or revisions thereto that are
requested by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used with respect to any Mortgage
Loan by or under authorization by any party hereto except to the extent that the
absence of a document described in the second preceding sentence with respect to
such Mortgage Loan remains unremedied as of the earlier of (i) the date that is
180 days following the delivery of notice of such absence to the Seller, but in
no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Custodian shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Custodian shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to the
Custodian on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions and additional time periods as
are permitted by this Section) with respect to each Mortgage Loan (each, a
"Mortgage File"). (The Seller acknowledges that the term "without recourse" does
not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed by an allonge attached thereto or endorsed in blank or
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16, without recourse, representation or warranty" or if the
original Mortgage Note is not included therein, then a lost note affidavit and
indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Authorized Person's Certificate (as defined
below) of the Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (ii) in the case of an
original Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Authorized
Person's Certificate of the Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Authorized
Person's Certificate of the Seller stating that such original intervening
assignment of Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Authorized Person's Certificate of the Seller stating that such Assignment of
Leases has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in blank or in favor of "LaSalle Bank National Association,
as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the Master Servicer, and applied, drawn, reduced or
released in accordance with documents evidencing or securing the applicable
Mortgage Loan and the Pooling and Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the Master Servicer on behalf of the Trustee, with a copy to be held by
the Custodian on behalf of the Trustee, and applied, drawn, reduced or released
in accordance with documents evidencing or securing the applicable Mortgage Loan
and the Pooling and Servicing Agreement (it being understood that the Seller has
agreed (a) that the proceeds of such letter of credit belong to the Trust, (b)
to notify, on or before the Closing Date, the bank issuing the letter of credit
that the letter of credit and the proceeds thereof belong to the Trust, and to
use reasonable efforts to obtain within 30 days (but in any event to obtain
within 90 days) following the Closing Date, an acknowledgement thereof by the
bank (with a copy of such acknowledgement to be sent to the Custodian on behalf
of the Trustee) or a reissued letter of credit and (c) to indemnify the Trust
for any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the Master Servicer shall be held
in its capacity as agent of the Trust, and if the Master Servicer sells its
rights to service the applicable Mortgage Loan, the Master Servicer has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the Special Servicer to such party as the Special Servicer may instruct, in each
case, at the expense of the Master Servicer. The Master Servicer has agreed to
indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Authorized Person's Certificate" shall mean a certificate signed
by one or more of the Chairman of the Board, any Vice Chairman, any Managing
Director or Director, the President, or any Executive Vice President, Senior
Vice President, Second Vice President, Vice President or Assistant Vice
President, any Treasurer, any Assistant Treasurer or any Secretary or Assistant
Secretary or any other person duly authorized to certify matters relating to the
Seller's U.S. commercial mortgage-backed securities business.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans in blank
or naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and
assignments of UCC financing statements may name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Authorized Person's Certificate of the Seller stating that such document
has been sent to the appropriate public recording official for recordation), to
the Custodian on behalf of the Trustee within such 90-day period, the Seller
shall then deliver within 180 days after the Closing Date the recorded document
(or within such longer period after the Closing Date as the Custodian on behalf
of the Trustee may consent to, which consent shall not be withheld so long as
the Seller is, as certified in writing to the Custodian on behalf of the Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 90 days following the Closing Date, the Seller shall
submit or cause to be submitted for recordation at the expense of the Seller, in
the appropriate public office for real property records, each assignment
referred to in clauses (d) and (f) above (with recording information in blank if
such information is not yet available). Within 15 days following the Closing
Date, the Seller shall submit or cause to be submitted for filing, at the
expense of the Seller, in the appropriate public office for Uniform Commercial
Code financing statements, the assignment referred to in clause (i)(B) above.
Each such assignment shall reflect that it should be returned by the public
recording office to the Custodian following recording or filing or such party
responsible for recording such assignment shall be responsible for forwarding
such assignment to the Custodian on behalf of the Trustee; provided that in
those instances where the public recording office retains the original
Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC
financing statements, the Seller at its own expense shall (1) provide to the
Custodian a certified copy of the recorded original of such document and provide
copies thereof to the Master Servicer and the Special Servicer or (2) pay all
expenses of the Custodian in connection with obtaining such certified copy and
forwarding copies thereof to the Master Servicer and the Special Servicer. If
any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Seller shall prepare a
substitute therefor or cure such defect, and the Seller shall, at its own
expense (except in the case of a document or instrument that is lost by the
Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the Master Servicer and
provide a franchise comfort letter from the franchisor on or prior to the date
that is thirty (30) days after the Closing Date. As to each Mortgage Loan
secured by a Mortgaged Property with respect to which a letter of credit is in
place, the Seller shall notify, on or before the Closing Date, the bank issuing
the letter of credit that such Mortgage Loan will be transferred to the Trust
pursuant to the Pooling and Servicing Agreement and such letter of credit and
the proceeds thereof belong to the Trust after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer, and use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement of the above notice by
the bank (with a copy of such acknowledgement to be sent to the Custodian on
behalf of the Trustee) or a reissued letter of credit. After the Closing Date,
with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of the Master Servicer, the Seller will draw on
such letter of credit as directed by the Master Servicer in such notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, privileged or other
communications, credit, underwriting, legal or other due diligence, analyses,
credit committee briefs or memoranda or other internal approval documents or
drafts or internal worksheets, memoranda, communications or evaluations, to the
extent created for internal use. Each of the foregoing items shall be delivered
by the Seller in electronic form, to the extent such document is available in
such form and such form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Custodian (on behalf of the Trustee) or the Master Servicer as set forth
herein, subject to the requirements of the Primary Servicing Agreement. The
Seller's and Purchaser's records shall reflect the transfer of each Mortgage
Loan from the Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property (other than the servicing rights
thereto). It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Seller to
the Purchaser to secure a debt or other obligation of the Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of the Seller, or if for any
other reason this Agreement is held or deemed to create a security interest in
the Mortgage Loans or any related property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule (other than the servicing rights
thereto), including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance
policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans
and all distributions with respect thereto, and the Mortgage
Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
reasonably cooperate with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the Special Servicer and each Rating
Agency to examine and audit all books, records and files pertaining to the
Mortgage Loans, the Seller's underwriting procedures and the Seller's ability to
perform or observe all of the terms, covenants and conditions of this Agreement.
Such examinations and audits shall take place at one or more offices of the
Seller during normal business hours and shall not be conducted in a manner that
is disruptive to the Seller's normal business operations upon reasonable prior
advance notice. In the course of such examinations and audits, the Seller will
make available to such representatives of any of the Purchaser, each
Underwriter, the Initial Purchaser, the Trustee, the Custodian, the Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
the Seller shall cooperate fully with any such examination and audit in all
material respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect. Within 45 days
after the Closing Date, the Seller shall provide the Master Servicer with any
additional information identified by the Master Servicer, as necessary to
complete the CMSA Property File, to the extent that such information is
available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
Canadian chartered bank acting through its branch located at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 , is in good standing and
has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of
the Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it
or any of its assets is bound or results in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant
to the terms of any such indenture, mortgage, contract or other
instrument, other than pursuant to this Agreement, or (C) after giving
effect to the consents or taking of the actions contemplated in
subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery
by, or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of
November 15, 2007, between the Seller, the Purchaser, the Underwriters
and the Initial Purchaser (the "Indemnification Agreement")) contained
in the Disclosure Information (as defined in the Indemnification
Agreement) taken together as a whole, as of the Time of Sale (as
defined in the Indemnification Agreement), and the Memorandum and the
Prospectus Supplement, as of their respective dates, (i) does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and
(ii) (other than the Memorandum) complies with the requirements of and
contains all of the applicable information required by Regulation AB
(as defined in the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter
into and consummate all transactions contemplated by this Agreement.
The Purchaser has duly and validly authorized the execution, delivery
and performance of this Agreement and has duly and validly executed
and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the Seller, constitutes the
valid and binding obligation of the Purchaser, enforceable against it
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the
Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws
or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach
of, any material agreement, contract, instrument or indenture to which
the Purchaser is a party or that may be applicable to the Purchaser or
its assets.
(v) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will
not constitute a violation of, any law, rule, writ, injunction, order
or decree of any court, or order or regulation of any federal, state
or municipal government agency having jurisdiction over the Purchaser
or its assets, which violation could materially and adversely affect
the condition (financial or otherwise) or the operation of the
Purchaser or its assets or could materially and adversely affect its
ability to perform its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the
Mortgage Loans, the issuance of the Certificates, the execution,
delivery or enforceability of this Agreement or have an effect on the
financial condition of the Purchaser that would materially and
adversely affect the ability of the Purchaser to perform its
obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchaser and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or consummation of any of the
transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties Made by the
Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, by way of
the Purchaser's assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Custodian on behalf of the Trustee pursuant to
Section 2 is not delivered as and when required (and including the expiration of
any grace or cure period), is not properly executed or is defective on its face,
or if there is a breach of any of the representations and warranties required to
be made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans at
the time of origination as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Authorized Person's Certificate
delivered to the Trustee, then the cure period will be extended for an
additional 90 days unless, solely in the case of a Material Document Defect, (x)
the Mortgage Loan is, at the end of the initial 90-day period, a Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result
of a monetary default or as described in clause (ii) or clause (v) of the
definition of "Servicing Transfer Event" in the Pooling and Servicing Agreement
and (y) the Material Document Defect was identified in a certification delivered
to the Seller by the Trustee pursuant to Section 2.2 of the Pooling and
Servicing Agreement not less than 90 days prior to the delivery of the notice of
such Material Document Defect. The parties acknowledge that neither delivery of
a certification or schedule of exceptions to the Seller pursuant to Section 2.2
of the Pooling and Servicing Agreement or otherwise nor possession of such
certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller of any Material Document Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Document Defect or Material Breach had
occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the debt
service coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement (determined as provided in the definition of Debt Service Coverage
Ratio in the Pooling and Servicing Agreement, except that net cash flow for such
four calendar quarters, rather than year-end, shall be used) is equal to the
greater of (x) the debt service coverage ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (x) the current loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(y) 75%. The determination of the Master Servicer as to whether either of the
conditions set forth above has been satisfied shall be conclusive and binding in
the absence of manifest error. The Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the Master Servicer at the
Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO Property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified replacement mortgage" within the meaning of the Treasury Regulations
promulgated under the Code and satisfy the definition of a "Qualifying
Substitute Mortgage Loan" in the Pooling and Servicing Agreement. Upon a breach
of the representation and warranty set forth in paragraph 37 of Exhibit 2
attached hereto, if such Mortgage Loan is modified within 90 days of the
discovery of such breach (and, in any event, within two years of the Closing
Date) so that it becomes a "qualified replacement mortgage", such breach will be
cured and the Seller will not be obligated to repurchase or otherwise remedy
such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the Special Servicer on its
behalf) shall give written notice within three Business Days to the Seller of
its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Loan Seller shall be vested with legal and beneficial title
to such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Loan Seller Information (as
defined in the Indemnification Agreement) to be disclosed in the Memorandum and
the Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of confirmation for the Seller issued by
Canada's Office of the Superintendent of Financial Institutions and a
certificate of licensing of the Seller issued by the Comptroller of the Currency
of the United States dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of an Authorized Person, dated the Closing
Date, and upon which the Purchaser may rely, to the effect that each individual
who, as an officer or representative of the Seller, signed this Agreement or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Canadian law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation
by the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes
a default under, the organizational documents of the Seller, (B) to
the knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or
indenture, to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument, other
than pursuant to this Agreement, or (C) conflicts with or results in a
breach or violation of any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority
having jurisdiction over the Seller or its assets, except where in any
of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien,
charge or encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations
and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is
a party, or threatened against the Seller, (a) asserting the
invalidity of this Agreement or (b) which materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by (1) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium,
(2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (4)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States, and
the laws of the states thereof, and the banking laws of Canada, and the laws of
the provinces and territories thereof, as applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated November 15, 2007 to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed "Xxxx of Sale" in the form attached hereto as
Exhibit 3 (the "Xxxx of Sale").
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Royal Bank of Canada, Xxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Xxxx Xxxxxxx, facsimile number (000) 000-0000, with a copy to Seller
at 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxx,
facsimile number (000)000-0000.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
ROYAL BANK OF CANADA
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
10 RBC Ashtabula Mall $40,300,000 0000 Xxxxx Xxxxx Xxxx Xxxx
22 RBC Deer Creek Marketplace $24,004,000 6800-6882 & 7040-7052
W. 000xx Xxxxxx
00 XXX Xxxxxxxx Xxxxxx $12,900,000 9654-9720 Colerain Avenue
44 RBC Danbrook Realty Portfolio - Xxxxxxx Xxxxx Plaza (VI) $7,100,000 000 Xxx Xxxxxxxx Xxxx
44 RBC Danbrook Realty Portfolio - Lincoln Plaza (VI) $5,022,000 000 Xxxx Xxxx Xxxxxx
58 RBC Healthsouth Rehabilitation Center (Fredericksburg, VA) $9,900,000 000 Xxxx Xxxx Xx.
00 XXX Xxxxxx Xxx Xxxxxxx $9,060,000 000 Xxxxxx Xxxxxx Xxxxxx
73 RBC Hilton Garden Inn (Kenner, LA) $8,272,000 0000 Xxxxxxxx Xxxx
76 RBC Xxxxxx Slingerlands Crossing II $8,080,000 0000 Xxx Xxxxxxxx Xxxx
86 RBC Xxxxxx Benedictine Cancer Center $7,076,100 000 Xxxxx Xxxxxx
88 RBC Xxxxxx Slingerlands Crossing I $6,940,000 0000 Xxx Xxxxxxxx Xxxx
91 RBC Holiday Inn Round Rock $6,750,000 0000 X. XX 00
00 XXX Xxxxx Xxxxx Apartments $6,450,000 0000 Xxxxx Xxxxx Xxxxxx
96 RBC Xxxxxx New Paltz Medical Center $6,128,000 000 Xxxx Xxxxxx
135 RBC Xxxxxxxx Xxxxxxxxxx Xxxxxx (0000 Xxx Xx, Xxxxxxxx, XX) $4,150,000 0000 Xxx Xxxxxx
152 RBC Xxxxxx Plank Medical Center $3,596,000 000 Xxxxx Xxxx
Totals and Weighted Averages: $165,728,100
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------------------------------------------------------------------------------------------------------
10 Xxxxxxxxx XX 00000 08/24/2007 09/01/2017 No
00 Xxxxxxxx Xxxx XX 00000 08/22/2007 09/01/2017 Xx
00 Xxxxxxxxxx XX 00000 10/10/2007 11/01/2017 No
00 Xxxxxxxxxxx XX 00000 09/24/2007 10/01/2017 No
00 Xxxxxxx XX 00000 09/24/2007 10/01/2017 No
58 Xxxxxxxxxxxxxx XX 00000 10/05/2007 11/01/2017 No
00 Xxx Xxxxxxx XX 00000 08/24/2007 09/01/2017 No
00 Xxxxxx XX 00000 09/20/2007 10/01/2017 No
76 Xxxxxxxxx XX 00000 08/24/2007 09/01/2017 No
00 Xxxxxxxx XX 00000 08/24/2007 09/01/2017 No
88 Xxxxxxxxx XX 00000 08/24/2007 09/01/2017 No
00 Xxxxx Xxxx XX 00000 10/09/2007 11/01/2017 Xx
00 Xxxxxxxxxx XX 00000 07/03/2007 07/01/2017 No
96 Xxx Xxxxx XX 00000 08/24/2007 09/01/2017 No
000 Xxxxxxxx XX 00000 10/17/2007 11/01/2017 No
000 Xxxxxxx Xxxx XX 00000 08/24/2007 09/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
---------------------------------------------------------------------------
10 120 118 360 6.400%
22 120 118 IO 5.480%
40 120 120 360 6.020%
44 120 119 360 6.870%
44 120 119 360 6.870%
58 120 120 360 6.500%
65 120 118 360 6.300%
73 120 119 360 7.020%
76 120 118 360 6.300%
86 120 118 360 6.300%
88 120 118 360 6.300%
91 120 120 360 6.510%
93 120 116 360 6.210%
96 120 118 360 6.300%
135 120 120 360 6.590%
152 120 118 360 6.300%
120 119 360 6.392%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is true and correct in all material respects as of the date of
this Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. Upon the consummation of the transactions contemplated by this
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to each Mortgage Loan free
and clear of any pledge, lien, charge, security interest or other encumbrance.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained. None of the Mortgage Loan documents restricts the Seller's
right to transfer the Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report issued after the first day of the month that is 18 months
prior to the Closing Date, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established based on the engineering report) that would materially and adversely
affect its value as security for the related Mortgage Loan and (ii) the
Mortgaged Properties securing the Mortgage Loans that were not the subject of an
engineering report 18 months prior to the Closing Date as set forth on Schedule
A to this Exhibit 2, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be
defined as a hazardous or toxic substance by any federal, state or
local environmental law, ordinance, rule, regulation or order,
including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. xx.xx. 6901 et
seq.), the Federal Water Pollution Control Act as amended (33 U.S.C.
xx.xx. 1251 et seq.), the Clean Air Act as amended (42 U.S.C. xx.xx.
1251 et seq.) and any regulations promulgated pursuant thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by reason
of fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge,
a debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
does not prohibit the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and the Trustee as its assignee upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(d) 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, and
the Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's knowledge, there exists no
condition that, but for the passage of time or the giving of notice,
or both, would result in an event of default under the terms of such
Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that
do not materially vary from the economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that
termination or cancellation without such consent may be binding on the
mortgagee if (i) an event of default occurs under the Ground Lease,
(ii) notice is provided to the mortgagee and (iii) such default is
curable by the mortgagee as provided in the Ground Lease but remains
uncured beyond the applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property that served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, except, in each case, for liens insured against by
the Title Policy referred to herein, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed
in an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
(29) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the
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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage"
as such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the Lender incurred in connection with (i)
the defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased
until a date that is more than two years after the Closing Date or provides that
it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has
a Stated Principal Balance as of the Cut-Off Date that is greater than or equal
to $20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage 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.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
SCHEDULE III
------------
MSCI 2007-IQ16
--------------
Royal Bank of Canada Loans
Exceptions to Representations and Warranties
--------------------------------------------
1. Mortgage Loan Schedule
2. Whole Loan; Ownership of Mortgage Loans.
3. Payment Record.
4. Lien; Valid Assignment.
o Healthsouth Rehabilitation Center (113495) ($9,900,000): (i) Tenant
(HealthSouth) has purchase option affecting entirety of property
effective 10.31.2017 with 12 months notice (loan matures (11.01.2017)
based on fair market value; (ii) Tenant (HealthSouth) has right of
first offer (ROFO); ROFO affects entire property, ROFO is not
extinguished by foreclosure; Foreclosure or deed-in-lieu does not
trigger ROFO, however
x Xxxxxx Slingerlands Crossing II (113081) ($8,080,000): Property is
subject to Payment In Lieu Of Taxes (PILOT) Agreement that imposes use
conditions on the related mortgage property in exchange for certain
tax benefits; Under certain circumstances, PILOT -related benefits can
be terminated, and there is no assurance that the PILOT Agreement
would not be terminated following the exercise of lender remedies;
PILOT Agreement terminates on 12.31.2016 or earlier termination of
ground lease; For underwriting purposes, property tax-related expenses
did not include PILOT benefits; Non-recourse carve-out (from SPE
borrower only) obtained for losses related to non-compliance with
PILOT Agreement
x Xxxxxx Benedictine Cancer Center (112648) ($7,076,100): Property is
subject to Payment In Lieu Of Taxes (PILOT) Agreement that imposes use
conditions on the related mortgage property in exchange for certain
tax benefits; Under certain circumstances, PILOT -related benefits can
be terminated, and there is no assurance that the PILOT Agreement
would not be terminated following the exercise of lender remedies; For
underwriting purposes, property tax-related expenses did not include
PILOT benefits; Non-recourse carve-out (from SPE borrower only)
obtained for losses related to non-compliance with PILOT Agreement
x Xxxxxx Slingerlands Crossing I (113079) ($6,940,000): Property is
subject to Payment In Lieu Of Taxes (PILOT) Agreement that imposes use
conditions on the related mortgage property in exchange for certain
tax benefits; Under certain circumstances, PILOT -related benefits can
be terminated, and there is no assurance that the PILOT Agreement
would not be terminated following the exercise of lender remedies;
PILOT Agreement terminates on 01.01.2010 or earlier termination of
ground lease; For underwriting purposes, property tax-related expenses
did not include PILOT benefits; Non-recourse carve-out (from SPE
borrower only) obtained for losses related to non-compliance with
PILOT Agreement
x Xxxxxx New Paltz Medical Center (113077) ($6,128,000): Property is
subject to Payment In Lieu Of Taxes (PILOT) Agreement that imposes use
conditions on the related mortgage property in exchange for certain
tax benefits; Under certain circumstances, PILOT -related benefits can
be terminated, and there is no assurance that the PILOT Agreement
would not be terminated following the exercise of lender remedies; For
underwriting purposes, property tax-related expenses did not include
PILOT benefits; Non-recourse carve-out (from SPE borrower only)
obtained for losses related to non-compliance with PILOT Agreement
x Xxxxxx Xxxxx Medical Center (113078) ($3,596,000): Property is subject
to Payment In Lieu Of Taxes (PILOT) Agreement that imposes use
conditions on the related mortgage property in exchange for certain
tax benefits; Under certain circumstances, PILOT -related benefits can
be terminated, and there is no assurance that the PILOT Agreement
would not be terminated following the exercise of lender remedies;
PILOT Agreement terminates 12.31.2009 by its own terms; For
underwriting purposes, property tax-related expenses did not include
PILOT benefits; Non-recourse carve-out (from SPE borrower only)
obtained for losses related to non-compliance with PILOT Agreement
5. Assignment of Leases and Rents.
6. Mortgage Status; Waivers and Modifications.
o Cedar Creek Apartments (111700) ($6,450,000): Loan assumed by
unrelated third party 11.19.2007 pursuant to loan document
requirements
7. Condition of Property; Condemnation.
o Cedar Creek Apartments (111700) ($6,450,000): Borrower has reported to
current servicer that (i) One unit of a 127 unit apartment complex was
damaged by fire on 10.28.2007; Borrower has reported damage to
insurance company and is in process of obtaining bids with respect to
repair of fire damaged unit; Cost of repair has been estimated at
$25,000 by borrower's insurance company; Loan documents provide that
all insurance proceeds are to be paid directly to lender to be
released to borrower subject to satisfaction of certain loan document
conditions; also, (ii) an additional unit sustained smoke damage as a
result from same fire; Repairs on smoke damaged unit in process and
expected to be completed prior to MSCI 2007 IQ16 Closing Date
8. Title Insurance
9. No Holdbacks.
10. Mortgage Provisions.
11. Trustee under Deed of Trust.
12. Environmental Conditions.
13. Loan Document Status.
14. Insurance.
o All RBC-originated Loans: The loan documents for various mortgaged
properties generally require property insurance against fire and other
hazards that would be covered by a standard extended and all-risk
insurance policy issued and do not specifically mention windstorm,
hail, lightning, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke
15. Taxes and Assessments.
16. Mortgagor Bankruptcy.
17. Leasehold Estate.
x Xxxxxx Medical Center of New Windsor (113075) ($9,060,000):
Sub-Leasehold; Fee Not Subordinated; Entirety of mortgaged property is
sub-leasehold estate; Latest sub-ground lease maturity is 08.24.2046
(Ground lease maturity is 01.01.2099); Variations: (i) ground lessor's
consent (not to be unreasonably withheld or delayed) is required in
connection with transfer of leasehold or sub-subleasehold interest to
subsequent leasehold mortgagee transfers to third parties following
the exercise of lender remedies
x Xxxxxx Benedictine Cancer Center (112648) ($7,060,000): Leasehold and
Sub-Subleasehold owned by Borrower (Ulster County Industrial
Development Authority owns Subleasehold in connection with
administration of PILOT program); Fee Not Subordinated; Latest
leasehold maturity is 12.31.2102; Latest sub-sublease maturity is
02.15.2029; Variations: (i) Ground lessor's consent (not to be
unreasonably withheld or delayed) required in connection with transfer
of leasehold or sub-subleasehold interest to subsequent leasehold
mortgagee transfers to third parties following the exercise of lender
remedies, (ii) Sub-subleasehold term is not at least 20 years past
loan maturity (09.01.2017); (iii) Sub-sublessee does not have
non-disturbance protections, although borrower-owned leasehold
interest does have such protection; (iv) Sub-sublessee does not have
notice and cure rights from XXX sub-sublessor; although borrower-owned
leasehold interest does have such protection; (v) Sub-sublessee does
not have "new lease in bankruptcy" rights, although borrower-owned
leasehold interest does have such protection; and (vi) Sub-sublease
may be modified without leasehold mortgagee's consent, although ground
lease may not be so amended
18. Escrow Deposits.
19. LTV Ratio.
20. Mortgage Loan Modifications.
21. Advancement of Funds by the Seller.
22. No Mechanics' Liens.
23. Compliance with Usury Laws.
24. Cross-Collateralization.
25. Releases of Mortgage Property.
26. No Equity Participation or Contingent Interest.
27. No Material Default.
28. Inspections.
29. Local Law Compliance.
30. Junior Liens
31. Actions Concerning Mortgage Loans.
32. Servicing.
33. Licenses and Permits.
34. Collateral in Trust.
35. Due on Sale.
36. Non-Recourse Exceptions.
o Deer Creek Marketplace (111969) ($24,004,000): No warm body carve-out
guarantor (Fox General Indemnitor, LLC); As of 03.01.2007, such
guarantor had a stated net worth of approximately $595,000 and
liquidity of approximately $595,000
x Xxxxxx Medical Center of New Windsor (113075) ($9,060,000): No
carve-out guarantor (SPE Borrower only)
x Xxxxxx Slingerlands Crossing II (113081) ($8,080,000): No carve-out
guarantor (SPE Borrower only)
x Xxxxxx Benedictine Cancer Center (112648) ($7,076,100): No carve-out
guarantor (SPE Borrower only)
x Xxxxxx Slingerlands Crossing I (113079) ($6,940,000): No carve-out
guarantor (SPE Borrower only)
x Xxxxxx New Paltz Medical Center (113077) ($6,128,000): No carve-out
guarantor (SPE Borrower only)
x Xxxxxx Plank Medical Center (113078) ($3,596,000): No carve-out
guarantor (SPE Borrower only)
37. REMIC Eligibility.
38. Prepayment Premiums.
39. Reserved
40. Single-Purpose Entity.
41. Defeasance and Assumption Costs.
42. Defeasance.
43. Authorized to do Business.
44. Terrorism Insurance.
Schedule A (Loans with Terrorism Insurance Variations)
o Deer Creek Marketplace (111969) ($24,004,000): Borrower's obligation
to provide terrorism insurance (certified acts only) capped at 150% of
current allocable terrorism premium
45. Operating Statements and Rent Rolls .
SCHEDULE A
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(B)
None.
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Royal Bank of Canada
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (other than the servicing rights thereto)
(the "Mortgage Loan Schedule") to the Mortgage Loan Purchase Agreement, dated as
of November 1, 2007 (the "Mortgage Loan Purchase Agreement"), between the Seller
and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: ROYAL BANK OF CANADA
By: ____________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ____________________________
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxx (the "Seller"), being duly empowered and
authorized to do so, does hereby make, constitute and appoint Xxxxx Fargo Bank,
National Association, having an address of 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Master Servicer"), Centerline Servicing Inc.,
having an address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxx X. Xxxxx (the "Special Servicer"), and LaSalle Bank National
Association, having an address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services--MS 2007-IQ16
(the "Trustee") as the true and lawful attorneys-in-fact for the undersigned, in
its name, place and stead, and for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of
the failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Capmark Master Servicer, the NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November 2007.
Witnessed by: ROYAL BANK OF CANADA
_________________________________ By:______________________________
Print Name: Name:
Title:
STATE OF____________________________)
COUNTY OF___________________________)
On __________________________, before me, a Notary Public in and
for said county, personally appeared ________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person acted and executed
the instrument. Witness my hand and official seal.
____________________________________
Commission Expires:
EXHIBIT K-5
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT V
(NATCITY)
MORTGAGE LOAN PURCHASE AGREEMENT
(NATIONAL CITY BANK LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between National City Bank (the "Seller"), and Xxxxxx Xxxxxxx
Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (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 A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M,
Class A-MFL, Class A-MA, Class A-J, Class A-JFL, and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (except with respect to the Class A-4 Certificates) and RBC
Capital Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,] Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $31,724,706. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price in the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
as of November 29, 2007, will be executed by the Seller and the Capmark Master
Servicer, in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to the Custodian on
behalf of the Trustee, on behalf of the Purchaser, on or prior to the Closing
Date, the Mortgage Note (as described in clause (a) below) for each Mortgage
Loan and on or prior to the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached hereto as Exhibit
4 in favor of the Trustee, the applicable Master Servicer and the applicable
Special Servicer to empower the Trustee, the applicable Master Servicer and, in
the event of the failure or incapacity of the Trustee and the applicable Master
Servicer, the applicable Special Servicer, to submit for recording, at the
expense of the Seller, any mortgage loan documents required to be recorded as
described in the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage Files (so long as original counterparts have previously been delivered
to the Trustee). The Seller agrees to reasonably cooperate with the Trustee, the
applicable Master Servicer and the applicable Special Servicer in connection
with any additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The parties hereto agree that
no such power of attorney shall be used with respect to any Mortgage Loan by or
under authorization by any party hereto except to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to the
Custodian on behalf of the Trustee each of the remaining documents or
instruments specified below (with such exceptions and additional time periods as
are permitted by this Section) with respect to each Mortgage Loan (each, a
"Mortgage File"). (The Seller acknowledges that the term "without recourse" does
not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost after recordation, the Seller shall deliver or cause to be delivered
to the Trustee a true and correct copy of such Assignment of Leases submitted
for recording, together with, (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such Assignment of Leases has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Assignment
of Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is recorded
that such copy is a true and complete copy of the original recorded Assignment
of Leases, in each case together with an original assignment of such Assignment
of Leases, in recordable form (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in favor of
"LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16," which
assignment may be effected in the related Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, 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 the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording office for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Custodian on behalf of the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, Custodian on behalf of the Trustee or the agents of either
may submit or cause to be submitted for recordation at the expense of the
Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust or the applicable Primary Servicer
(on behalf of the Trustee), as applicable, after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer or the
applicable Primary Servicer, as the case may be, and use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement of the above notice by the bank (with a copy of
such acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit. After the Closing Date, with respect to any letter of
credit that has not yet been assigned to the Trust (or whose beneficiary has not
yet been changed to the Trust), upon the written request of the applicable
Master Servicer or the applicable Primary Servicer, the Seller will draw on such
letter of credit as directed by such Master Servicer or such Primary Servicer in
such notice to the extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, 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 the
applicable Primary Servicer shall be deemed a delivery to the applicable Master
Servicer and satisfy Seller's obligations under this sub-paragraph. Each of the
foregoing items shall be delivered by the Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to the applicable Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents constituting the
Servicing File with respect to the related Mortgage Loan prepared by or that
come into the possession of the Seller shall immediately vest in the Purchaser
and its assigns, and shall be delivered promptly by the Seller to or on behalf
of either the Custodian (on behalf of the Trustee) or the applicable Master
Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. The Seller's and Purchaser's records shall reflect the
transfer of each Mortgage Loan from the Seller to the Purchaser and its assigns
as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller hereby agrees to provide the Purchaser with prompt notice
of any information it receives which indicates that the transfer of each
Mortgage Loan from the Seller to the Purchaser may not be treated as a sale. The
Seller shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the property described above, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Agreement. In such case, the Seller hereby authorizes the applicable Master
Servicer, the Trustee and the Custodian to file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency to examine and audit all books, records and files pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and shall not be conducted in a
manner that is disruptive to the Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations and audits,
the Seller will make available to such representatives of any of the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Custodian, the
applicable Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Mortgage Loans and the
terms of this Agreement, and the Seller shall cooperate fully with any such
examination and audit in all material respects. On or prior to the Closing Date,
the Seller shall provide the Purchaser with all material information regarding
the Seller's financial condition and access to knowledgeable financial or
accounting officers for the purpose of answering questions with respect to the
Seller's financial condition, financial statements as provided to the Purchaser
or other developments affecting the Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting the Seller in any
material respect. Within 45 days after the Closing Date, the Seller shall
provide the applicable Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the applicable Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States. The Seller has the requisite power and authority and legal right
to own the Mortgage Loans and to transfer and convey the Mortgage Loans to
the Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, fraudulent transfer,
reorganization, conservatorship, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities
under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's articles of organization or by-laws, (B) any
term or provision of any material agreement, contract, instrument or
indenture to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of November
15, 2007, between the Seller, the Purchaser, the Underwriters and the
Initial Purchaser (the "Indemnification Agreement")) contained in the
Disclosure Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement as of the Time of Sale (as
defined in the Indemnification Agreement) (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) (other than the Memorandum)
complies with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto, 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.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Custodian on behalf of the Trustee pursuant to Section 2
is not delivered as and when required (and including the expiration of any grace
or cure period), is not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
respects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach or Material Document Defect had
occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the debt
service coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than (determined as provided in the definition of Debt
Service Coverage Ratio in the Pooling and Servicing Agreement, except that net
cash flow for such four calendar quarters, rather than year-end, shall be used)
the greater of (x) the debt service coverage ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (x) the current loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(y) 75%. The determination of the applicable Master Servicer as to whether
either of the conditions set forth above has been satisfied shall be conclusive
and binding in the absence of manifest error. The applicable Master Servicer
will be entitled to cause, or direct the Seller to cause, to be delivered to
such Master Servicer (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents, 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 hereto are intended third-party beneficiaries of the provisions set
forth in this paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect to any
Mortgage Loan without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or the applicable Special Servicer, as
applicable, shall be required to notify the Seller of the discovery of the
Material Document Defect or Material Breach and the Seller shall be required to
follow the procedures set forth in this Agreement to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account. 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 the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified mortgage" within the meaning of the Treasury Regulations promulgated
under the Code. Upon a breach of the representation and warranty set forth in
paragraph 37 of Exhibit 2 attached hereto, if such Mortgage Loan is modified so
that it becomes a "qualified mortgage", such breach will be cured and the Seller
will not be obligated to repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice promptly (but in any event within three
Business Days) to the Seller of its discovery of any Material Document Defect or
Material Breach and prompt written notice to the Seller in the event that any
Mortgage Loan becomes a Specially Serviced Mortgage Loan (as defined in the
Pooling and Servicing Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date (to the extent of the standard, if any, set
forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Loan Seller Information (as
defined in the Indemnification Agreement) to be disclosed in the Memorandum and
the Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary of
State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under the laws of the United
States and has full corporate power and authority to enter into and
perform its obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitutes a default
under, the organizational documents of the Seller, (B) to the knowledge of
such counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it or any of its assets is bound or results in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract
or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, fraudulent transfer, reorganization,
conservatorship, 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, as applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
3.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller as required to be
reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in formatting
reasonably appropriate for inclusion in such form), including, without
limitation, the disclosure required under Items 1117 and 1119 of Regulation AB
and Item 1.03 to Form 8-K. The Seller shall use its best efforts to deliver
proposed disclosure language relating to any event described under Items 1117
and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee and the
Purchaser within one Business Day and in any event no later than two Business
Days of the Seller becoming aware of such event and shall provide disclosure
relating to any other event required to be disclosed on Form 8-K, Form 10-D or
Form 10-K within two Business Days following the Purchaser's request for such
disclosure language. The obligation of the Seller to provide the
above-referenced disclosure materials will terminate upon notice or other
written confirmation from the Purchaser or the Trustee that the Trustee has
filed a Form 15 with respect to the Trust as to that fiscal year in accordance
with Section 13.8 of the Pooling and Servicing Agreement or the reporting
requirements with respect to the Trust under the Securities Exchange Act of
1934, as amended, have otherwise been automatically suspended. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
will be used in the preparation of reports meeting the reporting requirements of
the Trust under Section 13(a) and/or Section 15(d) of the Securities Exchange
Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxx,
with a copy to Xxxxxxx Xxxxxx, with a copy to Xxxxxxx Xxxxxx (or such other
address as may hereafter be furnished in writing by the Purchaser), or (ii) if
to the Seller, addressed to the Seller at National City Bank, 000 Xxx Xxxxxx,
0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NATIONAL CITY BANK
By: /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Property Cut-Off
Loan No. Loan Seller Name Date Balance Street Address City State Zip Code
------------------------------------------------------------------------------------------------------------------------------
59 NatCity IDG Columbus $3,929,824 0000 Xxxxx Xx. Xxxxxxxx XX 00000
00 XxxXxxx XXX Xxxxxxxxxxx $2,077,193 0000 Xxxxxx Xxxx Xx. Xxxxxxxxxxxx XX 00000
59 NatCity IDG Polaris $1,908,772 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000
00 XxxXxxx XXX Xxxxxx $1,684,210 0000 X. Xxxxxx-Xxxxxxxxx Xx. Xxxxxx XX 00000
60 NatCity Hunters Square Office $9,576,284 8600 - 0000 X. Xxxxxx Xx. Xxxxxx XX 00000
00 XxxXxxx Xxxxxxxx Xxxxx $6,050,000 25450 - 00000 Xxxxxx Xxx. Xxxxxx XX 00000
133 NatCity Xxxxxxxxx MHP $4,300,000 0000 Xxxxxx Xxxx Xx. Xxxxxxxxxx XX 00000
196 NatCity Riviera Apartments $2,198,422 2323 - 0000 Xxxxxxxxx Xxx. Xxxxxx XX 00000
Original Remaining Original
Mortgage Term to Term to Amort. Mortgage
Loan No. Note Date Maturity Date ARD Loan Maturity Maturity Term Rate
---------------------------------------------------------------------------------------------
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
60 07/30/2007 08/01/2017 No 120 117 360 6.320%
98 07/31/2007 08/01/2012 No 60 57 360 6.607%
133 10/19/2007 11/01/2017 No 120 120 276 6.498%
196 09/20/2007 10/01/2017 No 120 119 360 6.531%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan and (ii) the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
18 months prior to the Closing Date as set forth on Schedule A to this Exhibit
2, each Mortgaged Property is in good repair and condition and all building
systems contained therein are in good working order (or adequate reserves
therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) 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, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the 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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage 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.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
2007-IQ16 - National City Bank
Schedule A: Representation Exceptions
Rep. 25. Releases of Mortgaged Property.
Mortgage Loan No. 59, IDG Retail, permits partial releases of certain portions
of the mortgaged property in connection with a partial defeasance, provided that
the borrower defeases the mortgage loan in an allocated amount in connection
with the released parcel, provided certain conditions are met, including among
other things that (a) the debt service coverage ratio with respect to the
remaining property after the partial defeasance is at least equal to the greater
of the debt service coverage ratio immediately prior to the release or
1.67:1.00, (b) the loan-to-value ratio with respect to the remaining property
after giving effect to the partial defeasance does not exceed the lesser of the
ratio immediately prior to the release or 58.2% and (c) rating agency
confirmation of no downgrade, withdrawal or qualification of the REMIC
securities rating on account of the partial defeasance.
Rep. 30. Junior Liens.
Mortgage Loan No. 59, IDG Retail, permits the related Mortgaged Property to be
encumbered by a junior lien, provided that the borrower satisfies certain
conditions set forth in the loan documents, including among other things that
(a) no event of default is then continuing, (b) the aggregate amount of any
junior lien debt and any mezzanine debt, does not exceed the lesser of
$2,400,000 or (when aggregated with the mortgage debt) 75% of the appraised
value of the property, (c) the debt service coverage ratio of the junior debt or
mezzanine debt is not less than 1.10:1.00, (d) an acceptable subordination and
standstill agreement and (e) if requested by lender, rating agency confirmation
of no downgrade, withdrawal or qualification of the REMIC securities rating on
account of the additional debt.
Rep. 35. Due on Sale (encumbrance).
Mortgage Loan No. 59, IDG Retail, permits mezzanine financing by the parent of
the borrower, provided certain conditions are met, as described above in
connection with representation 30, above.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None.
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: National City Bank
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: NATIONAL CITY BANK
By:
--------------------------------------
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 000 Xxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx (the "Seller"), being duly empowered
and authorized to do so, does hereby make, constitute and appoint Capmark
Finance Inc., having an address of 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000
(the "Master Servicer"), Centerline Servicing Inc. (formerly ARCap Servicing,
Inc.), having an address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxx X. Xxxxx (the "Special Servicer"), and LaSalle Bank National
Association, having an address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Securities and Trust Services--MS 2007-IQ16
(the "Trustee"), as the true and lawful attorneys-in-fact for the undersigned,
in its name, place and stead, and for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of
the failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Xxxxx Fargo Master Servicer, the NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November 2007.
Witnessed by: NATIONAL CITY BANK
By:
--------------------------- ---------------------------
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for said
county, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person acted and executed the instrument.
Witness my hand and official seal.
---------------------------------------
Commission Expires:
EXHIBIT K-6
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT VI
(NCB, FSB)
MORTGAGE LOAN PURCHASE AGREEMENT
(NCB, FSB LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between NCB, FSB (the "Seller"), and Xxxxxx Xxxxxxx Capital I
Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to the Class A-4 Certificates) and RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007 (the "Underwriting Agreement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I, Class R-II
and Class R-III Certificates) for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum, dated as of November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $78,111,239. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, in and to the Mortgage Loans identified on the Mortgage Loan Schedule as
of the Closing Date. The Mortgage Loan Schedule, as it may be amended from time
to time on or prior to the Closing Date, shall conform to the requirements of
this Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 4 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company, Seller, or escrow company to be a true copy thereof; provided that if
such original Mortgage cannot be delivered with evidence of recording thereon on
or prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company, Seller, or escrow company to
be a true copy thereof; provided that if such Assignment of Leases has not been
returned on or prior to the 90th day following the Closing Date because of a
delay caused by the applicable public recording office where such Assignment of
Leases has been delivered for recordation or because such original Assignment of
Leases has been lost, the Seller shall deliver or cause to be delivered to the
Trustee a true and correct copy of such Assignment of Leases submitted for
recording, together with, (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such Assignment of Leases has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Assignment
of Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is recorded
that such copy is a true and complete copy of the original recorded Assignment
of Leases, in each case together with an original assignment of such Assignment
of Leases, in recordable form (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in favor of
"LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16," which
assignment may be effected in the related Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the applicable Primary Servicer,
if any (or the applicable Master Servicer), and applied, drawn, reduced or
released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement or (B) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan (other than letters of credit
representing tenant security deposits which have been collaterally assigned to
the lender), which shall be held by the applicable Primary Servicer, if any (or
the applicable Master Servicer), on behalf of the Trustee, with a copy to be
held by the Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being understood
that the Seller has agreed (a) that the proceeds of such letter of credit belong
to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the
letter of credit that the letter of credit and the proceeds thereof belong to
the Trust, and to use reasonable efforts to obtain within 30 days (but in any
event to obtain within 90 days) following the Closing Date, an acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent to the
Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the failure of
the Seller to assign the letter of credit hereunder). In the case of clause (B)
above, any letter of credit held by the applicable Primary Servicer (or Master
Servicer) shall be held in its capacity as agent of the Trust, and if the
applicable Primary Servicer (or Master Servicer) sells its rights to service the
applicable Mortgage Loan, the applicable Primary Servicer (or Master Servicer)
has agreed to assign the applicable letter of credit to the Trust or at the
direction of the applicable Special Servicer to such party as such Special
Servicer may instruct, in each case, at the expense of the applicable Primary
Servicer (or Master Servicer). The applicable Primary Servicer (or Master
Servicer) has agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of the Seller, in the appropriate
public office for real property records, each assignment referred to in clauses
(d) and (f)(ii) above (with recording information in blank if such information
is not yet available). Within 15 days following the Closing Date, the Seller
shall deliver and the Purchaser, the Trustee or the agents of either may submit
or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Seller shall prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust after such transfer, and inform
such issuing bank that any notices to the Mortgagor's lender pursuant to such
letter of credit should thereafter be forwarded to the Master Servicer, and use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement of the above notice by
the bank (with a copy of such acknowledgement to be sent to the Custodian on
behalf of the Trustee) or a reissued letter of credit. After the Closing Date,
with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of the applicable Master Servicer or the
applicable Primary Servicer, the Seller will draw on such letter of credit as
directed by such Master Servicer or such Primary Servicer in such notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the applicable Primary Servicer (if any)
shall be deemed a delivery to the applicable Master Servicer and satisfy
Seller's obligations under this sub-paragraph. Each of the foregoing items shall
be delivered by the Seller in electronic form, to the extent such document is
available in such form and such form is reasonably acceptable to the applicable
Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Trustee or the
applicable Master Servicer as set forth herein, subject to the requirements of
the Primary Servicing Agreement. The Seller's and Purchaser's records shall
reflect the transfer of each Mortgage Loan from the Seller to the Purchaser and
its assigns as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the applicable Special Servicer and each Rating Agency
to examine and audit all books, records and files pertaining to the Mortgage
Loans, the Seller's underwriting procedures and the Seller's ability to perform
or observe all of the terms, covenants and conditions of this Agreement. Such
examinations and audits shall take place at one or more offices of the Seller
during normal business hours and shall not be conducted in a manner that is
disruptive to the Seller's normal business operations upon reasonable prior
advance notice. In the course of such examinations and audits, the Seller will
make available to such representatives of any of the Purchaser, each
Underwriter, the Initial Purchaser, the Trustee, the applicable Special Servicer
and each Rating Agency reasonably adequate facilities, as well as the assistance
of a sufficient number of knowledgeable and responsible individuals who are
familiar with the Mortgage Loans and the terms of this Agreement, and the Seller
shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect. Within 45 days
after the Closing Date, the Seller shall provide the applicable Master Servicer
or Primary Servicer, if applicable, with any additional information identified
by such Master Servicer or Primary Servicer, if applicable, as necessary to
complete the CMSA Property File, to the extent that such information is
available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
federal savings bank in good standing under the laws of the United States
of America. The Seller has the requisite power and authority and legal
right to own the Mortgage Loans and to transfer and convey the Mortgage
Loans to the Purchaser and has the requisite power and authority to
execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's articles of organization or by-laws, (B) any
term or provision of any material agreement, contract, instrument or
indenture to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of November
15, 2007, between the Seller, the Purchaser, the Underwriters and the
Initial Purchaser (the "Indemnification Agreement")) contained in the
Disclosure Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading and (ii) (other than the Memorandum)
complies with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser
hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(v) The Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or consummation of any of the transactions contemplated
hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Trustee pursuant to Section 2 is not delivered as and
when required (and including the expiration of any grace or cure period), is not
properly executed or is defective on its face, or if there is a breach of any of
the representations and warranties required to be made by the Seller regarding
the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the applicable Master Servicer shall, and the applicable Special
Servicer may, request that the Seller, not later than 90 days from the Seller's
receipt of the notice of such Material Document Defect or Material Breach, cure
such Material Document Defect or Material Breach, as the case may be, in all
material respects; provided, however, that if such Material Document Defect or
Material Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, and such Material Document Defect
or Material Breach would not cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code), but the Seller is diligently
attempting to effect such correction or cure, as certified by the Seller in an
Officer's Certificate delivered to the Trustee, then the cure period will be
extended for an additional 90 days unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is, at the end of the initial 90-day
period, a Specially Serviced Mortgage Loan and a Servicing Transfer Event has
occurred as a result of a monetary default or as described in clause (ii) or
clause (v) of the definition of "Servicing Transfer Event" in the Pooling and
Servicing Agreement and (y) the Material Document Defect was identified in a
certification delivered to the Seller by the Trustee pursuant to Section 2.2 of
the Pooling and Servicing Agreement not less than 90 days prior to the delivery
of the notice of such Material Document Defect. The parties acknowledge that
neither delivery of a certification or schedule of exceptions to the Seller
pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor
possession of such certification or schedule by the Seller shall, in and of
itself, constitute delivery of notice of any Material Document Defect or
knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the applicable Master Servicer as to whether either of the conditions set
forth above has been satisfied shall be conclusive and binding in the absence of
manifest error. The applicable Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the applicable Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a "Cross-
Collateralized Loan") with such Repurchased Loan, the Seller and the Purchaser
hereby agree to modify, upon such repurchase or substitution, the related
Mortgage Loan documents in a manner such that such affected Repurchased Loan, on
the one hand, and any related Crossed-Collateralized Loans held by the Trustee,
on the other, would no longer be cross-defaulted or cross-collateralized with
one another; provided that the Seller shall have furnished the Trustee, at the
expense of the Seller, a nondisqualification opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
nondisqualification opinion cannot be furnished, the Seller and the Purchaser
agreed that such repurchase or substitution of only the Repurchased Loan,
notwithstanding anything to the contrary herein, shall not be permitted and the
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents. All other terms
of the Mortgage Loans shall remain in full force and effect, without any
modification thereof. The Mortgagors set forth on Schedule B hereto are intended
third-party beneficiaries of the provisions set forth in this paragraph and the
preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or Special Servicer, as applicable, shall
be required to notify the Seller of the discovery of the Material Document
Defect or Material Breach and the Seller shall be required to follow the
procedures set forth in this Agreement to correct or cure such Material Document
Defect or Material Breach or purchase the REO Property at the Purchase Price. If
the Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the Seller's right to purchase such
REO Property shall apply. If a court of competent jurisdiction issues a final
order that the Seller is or was obligated to repurchase the related Mortgage
Loan or REO Mortgage Loan or the Seller otherwise accepts liability, then, after
the expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Loan Seller Information (as
defined in the Indemnification Agreement) to be disclosed in the Memorandum and
the Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Office of
Thrift Supervision dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary, Assistant Secretary or Vice
President of the Seller, dated the Closing Date, and upon which the Purchaser
may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures.
(f) An opinion of counsel to the Seller, dated the Closing Date,
substantially in the form of Exhibit 5, attached hereto.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
3.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event reasonably determined in good faith by the Purchaser as
required to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in
formatting reasonably appropriate for inclusion in such form), including,
without limitation, the disclosure required under Items 1117 and 1119 of
Regulation AB and Item 1.03 to Form 8-K. The Seller shall use its best efforts
to deliver proposed disclosure language relating to any event described under
Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee
and the Purchaser within one Business Day and in any event no later than two
Business Days of the Seller becoming aware of such event and shall provide
disclosure relating to any other event reasonably determined by the Purchaser as
required to be disclosed on Form 8-K, Form 10-D or Form 10-K within two Business
Days following the Purchaser's request for such disclosure language. The
obligation of the Seller to provide the above-referenced disclosure materials
will terminate upon notice from the Purchaser or the Trustee that the Trustee
has filed a Form 15 with respect to the Trust as to that fiscal year in
accordance with Section 13.8 of the Pooling and Servicing Agreement. The Seller
hereby acknowledges that the information to be provided by it pursuant to this
Section will be used in the preparation of reports meeting the reporting
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
NCB, FSB, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxxx
Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NCB, FSB
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Loan Cut-Off Date
Loan No. Seller(1) Property Name(2) Balance(3)
----------------------------------------------------------------------------------------------------------
63 NCB, FSB Lumberton Town Center $9,483,907
75 NCB, FSB Fresenius Medical Care Portfolio - Mobile (X) $1,343,000
75 NCB, FSB Fresenius Medical Care Portfolio - Xxxxxxx (X) $1,283,000
75 NCB, FSB Fresenius Medical Care Portfolio - Xxxxxxxxx (X) $1,283,000
75 NCB, FSB Fresenius Medical Care Portfolio - Thomasville (X) $1,250,000
75 NCB, FSB Fresenius Medical Care Portfolio - Xxxxxxxxx (X) $1,163,000
75 NCB, FSB Fresenius Medical Care Portfolio - Auburn (X) $973,000
75 NCB, FSB Fresenius Medical Care Portfolio - Alexander City (X) $835,000
101 NCB, FSB The Exchange Building 100 $5,700,000
127 NCB, FSB Xxxxxxxxx Portfolio - Xxxxxxxxx Supply #263 (XII) $2,400,359
127 NCB, FSB Xxxxxxxxx Portfolio - Xxxxxxxxx Supply #295 (XII) $1,012,651
127 NCB, FSB Xxxxxxxxx Portfolio - Xxxxxxxxx Supply #124 (XII) $997,649
127 NCB, FSB Xxxxxxxxx Portfolio - Xxxxxxxxx Supply #317 (XII) $320,673
141 NCB, FSB Ramada Inn - Baltimore $3,995,092
151 NCB, FSB Fidelity Engineering Corp. $3,600,000
166 NCB, FSB Beco Corporate Center $3,280,000
178 NCB, FSB Xxxxxxxx Shops $2,972,560
188 NCB, FSB Imperial Square Shopping Center $2,490,447
190 NCB, FSB Laurel Office Park Building $2,400,000
193 NCB, FSB 0000 Xxxx Xxxx Xxx. $2,294,221
195 NCB, FSB Xxxxxx Building $2,216,500
199 NCB, FSB Dunwoody Club Center $2,160,000
200 NCB, FSB Safeway Plaza $2,145,763
205 NCB, FSB Clarkston Village $1,997,467
208 NCB, FSB Time Warner $1,938,870
209 NCB, FSB Camden Corners $1,938,678
215 NCB, FSB Family Dollar Portfolio - Xxxxx Crossing (XIV) $985,625
215 NCB, FSB Family Dollar Portfolio - Northleigh Family Dollar (XIV) $752,659
217 NCB, FSB 5010 Medical Care Court LLC $1,690,799
218 NCB, FSB Seven Lakes Shopping Center $1,680,000
219 NCB, FSB Xxxx'x Supermarket $1,500,000
220 NCB, FSB Brooklyn Federal Savings Bank $1,475,000
222 NCB, FSB Xxxxxx Holding Corp. $1,398,878
225 NCB, FSB Carthage Plaza $1,350,000
227 NCB, FSB 00 Xxxxxx Xxxxxx $1,296,889
228 NCB, FSB E Xxxxx de Xxxx Retail, LLC $1,290,519
229 NCB, FSB Shoppes of Lucedale $1,176,400
230 NCB, FSB Duluth Auto Center $1,120,000
232 NCB, FSB Canal Studio Corp. $500,000
233 NCB, FSB 000 0xx Xxx. Corporation $239,935
234 NCB, FSB 51 Seventh Housing Corp. $179,699
----------------------------------------------------------------------------------------------------------
Totals and Weighted Averages: $78,111,239
----------------------------------------------------------------------------------------------------------
Mortgage
Loan No. Street Address City State Zip Code
------------------------------------------------------------------------------------------------------------------
63 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
75 0000 Xxx Xxxxx Xxxx Xxxxxx XX 00000
75 000 Xxxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000
75 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
75 00000 Xxxxxxx 00 Xxxxxxxxxxx XX 00000
75 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
75 000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxx XX 00000
75 00 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
101 0000 Xxxxxxx'x Xxxxxx Xxxx, Xxxxxxxx 000 Xxxxxx XX 00000
127 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
127 0000 Xxxx Xxxxxx xxxx Xxxxxxx-Xxxxx XX 00000
127 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
127 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
141 0000 Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
151 00 Xxxxxxx Xxxxxx Xxxxxx XX 00000
166 000 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
178 3300, 3308, 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
188 0000 X. Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
190 0000 Xxxxxxxxx Xxxxxxxx Xxxxxxx XX 00000
193 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
195 900, 910, 000 Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000
199 0000-0000 Xxxx Xxxxx Xxxx Xxxxxxx XX 00000
200 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx. Xxxxxx XX 00000
205 000-000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
208 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
209 0000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000
215 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
215 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
217 0000 Xxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
218 0000 Xxxxx Xxxxx Xxxxx Xxxx Xxx XX 00000
219 0000 Xxxx Xxxxxx Xxxxxxx XX 00000
220 0000 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000
222 00 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000
225 000-000 Xxxxxxx 00 Xxxx Xxxxxxxx XX 00000
227 00 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
228 0000 X. Xxxxx xx Xxxx Xxxxxx Xxxxxxx XX 00000
229 00000 Xxxxxxx 00 Xxxxx Xxxxxxxx XX 00000
230 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx. Xxxxxx XX 00000
232 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
233 000 0xx Xxxxxx Xxxxxxxx XX 00000
234 00 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------
Totals and Weighted Averages:
------------------------------------------------------------------------------------------------------------------
Original Remaining Original
Mortgage Term to Term to Amort. Mortgage
Loan No. Note Date Maturity Date ARD Loan Maturity Maturity Term (9) Rate
-------------------------------------------------------------------------------------------------------------------------------
63 08/30/2007 09/01/2017 No 120 118 360 6.340%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
101 06/15/2007 07/01/2017 No 120 116 360 5.790%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
141 09/26/2007 10/01/2017 No 120 119 300 6.200%
151 07/03/2007 08/01/2017 No 120 117 360 6.360%
166 08/22/2007 09/01/2017 No 120 118 360 6.050%
178 09/13/2007 10/01/2017 No 120 119 360 6.040%
188 06/29/2007 07/01/2017 No 120 116 360 5.640%
190 06/07/2007 07/01/2017 No 120 116 360 5.910%
193 08/01/2007 08/01/2017 No 120 117 360 6.250%
195 10/04/2007 11/01/2017 No 120 120 360 6.040%
199 08/29/2007 09/01/2017 No 120 118 360 6.150%
200 06/13/2007 07/01/2017 No 120 116 300 6.600%
205 09/14/2007 10/01/2017 No 120 119 300 6.040%
208 04/27/2007 05/01/2017 No 120 114 360 5.740%
209 09/28/2007 10/01/2017 No 120 119 360 6.710%
215 03/08/2007 04/01/2017 No 120 113 360 5.800%
215 03/08/2007 04/01/2017 No 120 113 360 5.800%
217 04/10/2007 05/01/2017 No 120 114 360 5.970%
218 06/13/2007 07/01/2017 No 120 116 360 5.750%
219 06/21/2007 07/01/2017 No 120 116 360 6.310%
220 07/25/2007 08/01/2017 No 120 117 360 6.340%
222 08/28/2007 09/01/2017 No 120 118 480 6.130%
225 02/27/2007 03/01/2017 No 120 112 360 5.830%
227 07/31/2007 08/01/2017 No 120 117 360 6.450%
228 02/28/2007 03/01/2017 No 120 112 360 5.980%
229 01/29/2007 02/01/2017 No 120 111 360 6.020%
230 06/28/2007 07/01/2017 No 120 116 300 5.950%
232 03/15/2007 04/01/2017 No 120 113 IO 6.260%
233 09/05/2007 10/01/2017 No 120 119 480 6.410%
234 07/18/2007 08/01/2017 No 120 117 360 7.800%
-------------------------------------------------------------------------------------------------------------------------------
Totals and Weighted Averages: 120 116 354 6.086%
-------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder 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. 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, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since November 1, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan and (ii) the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
18 months prior to the Closing Date as set forth on Schedule A to this Exhibit
2, each Mortgaged Property is in good repair and condition and all building
systems contained therein are in good working order (or adequate reserves
therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, 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 the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither 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, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450 or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), 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:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the 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;
(b) 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;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) 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, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) 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;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) 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;
(i) 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;
(j) 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; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the 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 the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) 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.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) 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 premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved]
(40) 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.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan other than Mortgage Loans secured by residential cooperative properties,
the related Mortgage Loan Documents require the related Mortgagor, in some cases
at the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except if
the Mortgage Loan has an outstanding principal balance of less than or equal to
$3,500,000 as of the Cut-Off Date or the related Mortgaged Property has only one
tenant, in either of which cases, the Mortgage Loan Documents require the
Mortgagor, in some cases at the request of the lender, to provide to the holder
of such Mortgage 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. With respect to Mortgage
Loans secured by residential cooperative properties, the related Mortgage Loan
Documents require the related Mortgagor to deliver annual financial statements
to the holder of such Mortgage Loan.
(46) 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.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL MORTGAGE
LOANS (2007-IQ16) (NCB, FSB)
Representation 12(i) - 51 Seventh Housing Corporation; 000 0xx Xxxxxx Corp. In
connection with the origination of the 51 Seventh Housing Corporation and 000
0xx Xxxxxx Corp. Mortgage Loans (each of such Mortgage Loans having an original
principal balance of $240,000 or less), an ASTM transaction screen was obtained
in lieu of a Phase I report. Each such transaction screen was, with certain
limited exceptions enumerated in the transaction screen, conducted utilizing the
American Society for Testing and Materials (ASTM) Standard Practice E 1527-00 or
E 1528-00.
Representation 17(j) - Clinton East aka Xxxx'x Supermarket. The Ground Lease
with respect to the Clinton East aka Xxxx'x Supermarket Mortgage Loan requires
the lessor to enter into a new ground lease with the holder of the Mortgage on
terms that do not materially vary from the economic terms of the Ground Lease in
the event such Ground Lease is terminated by reason of a default thereunder, but
does not specifically require the lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in a bankruptcy
proceeding.
Representation 30. The borrowers under the Mortgage Loans listed on Schedule B
hereto are permitted to incur and/or have incurred additional subordinate
financing secured by the related property. The amount of current existing
subordinate indebtedness is more particularly set forth in the mortgage loan
schedule under the heading "Current Additional Financing In Place." The amount
of permitted future subordinate indebtedness is more particularly set forth in
the mortgage loan schedule under the heading "Financing Permitted In Future." In
connection with any such future subordinate financing, the lender shall enter
into a subordination agreement.
Representation 35. All of the Mortgage Loans secured by residential cooperatives
permit, without the prior written consent of the holder of the related Mortgage,
transfers of stock of the related Mortgagor in connection with the assignment of
a proprietary lease for an apartment unit by a tenant shareholder of the related
Mortgagor to other persons who by virtue of such transfers become
tenant-shareholders in the related Mortgagor.
Representation 36. All of the Mortgage Loans secured by residential cooperatives
are fully recourse to the related Mortgagors, which Mortgagors are not natural
persons.
Representation 36 - Clinton East aka Xxxx'x Supermarket. The loan is not
recourse to a natural person. However, the borrower, which is not a natural
person, is obligated on the recourse carveout obligations pursuant to the terms
of the promissory note. There is a separate recourse guaranty executed by
XXXXXXX XXXX FAMILY LIMITED PARTNERSHIP, L.P., an affiliate of borrower and not
a natural person.
Representation 36 - Xxxxxx Building LLC aka 900 Technology; 00 Xxxxxxx Xxxxxx
aka Fidelity Engineering Corporation. The loan is not recourse to a natural
person. However, the borrower, which is not a natural person, is obligated on
the recourse carveout obligations pursuant to the terms of the promissory note
and/or the Mortgage.
Schedule A
----------
Representation 25 - CM&DM Properties aka Xxxxxxxxx Supply. The CM&DM Properties
aka Xxxxxxxxx Supply Mortgage Loan permits the release of one or more parcels
from the lien of the related Mortgage upon a partial defeasance in an amount
equal to 125% of an allocated partial defeasance release amount as more
particularly set forth in the Mortgage Loan documents.
Representation 25 -Fresnius Medical Office Portfolio. The Fresnius Medical
Office Portfolio Mortgage Loan permits the release of one or more parcels from
the lien of the related Mortgage upon payment of a yield maintenance
consideration which is equal to 125% of an allocated loan amount for the
released property.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None
ANNEX A
Loans as to which the borrower is permitted to incur and/or has incurred
additional subordinate financing secured by the related property.
---------------------------------------
Canal Studio Corp.
---------------------------------------
Xxxxxx Holding Corporation
---------------------------------------
Fidelity Engineering Corp.
---------------------------------------
Safeway Plaza
---------------------------------------
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: NCB, FSB
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_________________ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November, 2007.
SELLER: NCB, FSB
By: ___________________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
NCB, FSB
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16
National Consumer Cooperative Bank
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Special Servicing
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2006-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxx (the "Seller"), being duly
empowered and authorized to do so, does hereby make, constitute and appoint NCB,
FSB, in its capacity as NCB Master Servicer pursuant to the Pooling and
Servicing Agreement, having an address of 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxx, Real Estate Master
Servicing-Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "NCB Master Servicer"), Centerline Servicing
Inc., having an address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000
(the "General Special Servicer"), National Consumer Cooperative Bank, having an
address of 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attention:
Xxxxxxxx Xxxxx, Real Estate Special Servicing-Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass Through Certificates, Series 2007-IQ16 (the "Co-op
Special Servicer," and together with the General Special Servicer, the "Special
Servicers"), and LaSalle Bank National Association, having an address of 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services--MS 2007-IQ16 (the "Trustee"), as the true and
lawful attorneys-in-fact for the undersigned, in its name, place and stead, and
for its use and benefit:
1. To empower the Trustee, the NCB Master Servicer and, in the event
of the failure or incapacity of the Trustee and the NCB Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement, dated as of November 1, 2007 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the
Capmark Master Servicer, the Xxxxx Fargo Master Servicer, the NCB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee
and the Paying Agent with respect to the Trust and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage File (so long as original counterparts have previously been delivered
to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November, 2007.
Witnessed by: NCB, FSB
___________________________ By:________________________
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for
said county, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person acted and executed the
instrument. Witness my hand and official seal.
_______________________________________
Commission Expires:
EXHIBIT 5
FORM OF OPINION OF COUNSEL
Tel: 000-000-0000
Fax: 000-000-0000
November [__], 2007
To the Parties Listed on Schedule A
Re: NCB, FSB
--------
Ladies and Gentlemen:
We have acted as special counsel to NCB, FSB ("NCB"), a federal savings
bank chartered by the Office of Thrift Supervision, U.S. Department of the
Treasury (the "OTS"), in connection with the following documents, which provide
for the proposed sale of certain mortgage loans and NCB's agreement to service
and administer certain mortgage loans and other assets: (i) Mortgage Loan
Purchase Agreement dated as of November 1, 2007, between NCB, as seller, and
Xxxxxx Xxxxxxx Capital I Inc. ("MSCI"), as purchaser (the "Mortgage Loan
Purchase Agreement"); (ii) Pooling and Servicing Agreement dated as of November
1, 2007, among MSCI, as Depositor, Capmark Finance Inc., as Capmark Master
Servicer, Xxxxx Fargo Bank, National Association, as Xxxxx Fargo Master
Servicer, NCB, FSB, as NCB Master Servicer, National Consumer Cooperative Bank,
as Co-op Special Servicer, Centerline Servicing Inc., as General Special
Servicer, LaSalle Bank National Association, as Trustee and Custodian, and Xxxxx
Fargo Bank, National Association, as Paying Agent, Certificate Registrar and
Authenticating Agent (the "Pooling and Servicing Agreement"; and together with
the Mortgage Loan Purchase Agreement, the "Principal Agreements"); and (iii)
Mortgage Loan Seller Indemnification Agreement dated as of November [__], 2007
between NCB, Xxxxxx Xxxxxxx & Co. Incorporated, [____], [____] and RBC Capital
Markets Corporation (the "Indemnification Agreement"; and together with the
Principal Agreements, the "Transaction Documents"). Capitalized terms not
otherwise defined herein shall have their respective meanings set forth in the
Principal Agreements.
In rendering the opinions expressed below, we have examined copies of the
Transaction Documents, agreements executed in connection therewith or pursuant
thereto and originals or conformed copies of such corporate records, agreements
and instruments of NCB, certificates of public officials and officers of NCB,
and such other documents and records, and such matters of law, as we have deemed
appropriate as a basis for the opinions hereinafter expressed. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of documents submitted to us as
originals and the conformity with authentic original documents of all documents
submitted to us as copies. When relevant facts were not independently
established, we have relied upon statements of governmental officials and upon
representations made in or pursuant to the Transaction Documents and
certificates and statements of appropriate representatives of NCB including,
without limitation, the certificate dated as of the date hereof issued by the
Secretary of NCB (the "NCB Certificate"), and with respect to good standing and
related matters, we have relied solely upon a certificate of the OTS issued on
November [__], 2007 (the "OTS Certificate") and the NCB Certificate.
In rendering the opinions expressed below, we have assumed that, other
than with respect to NCB, all of the documents referred to in this opinion have
been duly authorized by, have been duly executed and delivered by, and
constitute the legal, valid, binding and enforceable obligations of, all of the
parties to such documents, that all of the signatories to such documents have
been duly authorized and that all such parties are duly organized and validly
existing and have the power and authority (corporate or other) to execute,
deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments,
assumptions and qualifications set forth below, we are of the opinion that:
1. Based solely upon the OTS Certificate, NCB is a federal savings
bank duly chartered by the OTS validly existing and in good standing under the
laws of the United States of America.
2. NCB has all necessary corporate power and authority to execute,
deliver and perform its obligations under the Transaction Documents. The
execution, delivery and performance of the Transaction Documents by NCB and the
consummation by NCB of the transactions contemplated thereby have been duly
authorized by all necessary corporate action on the part of NCB, and the
Transaction Documents have been validly executed and delivered by NCB. The
Principal Agreements constitute the valid and binding obligation of NCB,
enforceable against it in accordance with their respective terms.
3. No consent, approval, authorization of, or declaration, filing or
registration with, any governmental authority in connection with or as a
condition to the execution or delivery by NCB of the Transaction Documents or
the consummation by NCB of the transactions contemplated thereby is required to
be obtained by NCB, except for such consents, approvals, authorizations,
declarations, filings or registrations that have been obtained, and except such
filings as may be necessary to transfer the Loans to the Purchaser pursuant to
the terms of the Mortgage Loan Purchase Agreement or to fulfill its obligations
as NCB Master Servicer under the Pooling and Servicing Agreement.
4. To our knowledge, there are no actions, suits, proceedings or
investigations pending or threatened against or affecting NCB which, if
adversely determined, individually or collectively, would materially adversely
affect NCB's ability to perform its obligations under the Transaction Documents
or the validity or enforceability of the Transaction Documents.
5. The execution, delivery and performance by NCB of the Transaction
Documents, and compliance by it therewith, do not and will not conflict with,
constitute a default under or violate (i) any provision of the charter or
by-laws of NCB, (ii) any provision of any material law, rule or regulation
applicable to NCB, (iii) any judgment, order, writ, injunction or decree known
to us of any court or governmental authority or regulatory body that names NCB
or is specifically directed to NCB, or (iv) to our knowledge, any indenture,
agreement or other instrument known to us to which NCB is a party or by which it
is bound.
In addition to the limitations set forth above, the opinions set
forth herein are further limited by, subject to and based upon the following:
(a) Wherever this opinion letter refers to matters "known to us," or
"to our knowledge," or words of similar import, such reference means that, in
the course of our representation of NCB in the transaction contemplated by the
Transaction Documents and inquiry of the lawyers within our firm familiar with
the transactions contemplated by the Transaction Documents, no information has
come to our attention that would give us actual knowledge or actual notice that
any such opinions or other matters set forth herein are not accurate. Except as
otherwise stated herein, we have undertaken no independent investigation or
verification of such matters. All opinions set forth herein are subject to, and
may be limited by, future changes in the factual matters set forth herein, and
we undertake no duty to advise you of the same.
(b) Our opinions herein reflect only the application of applicable
New York law and the federal laws of the United States. The opinions expressed
herein are based upon the law in effect (and published or otherwise generally
available) on the date hereof, and we assume no obligation to revise or
supplement these opinions should such law be changed by legislative action,
judicial decision or otherwise. In rendering our opinions, we have not
considered, and hereby disclaim any opinion as to, the application or impact of
any laws, cases, decisions, rules or regulations of any other jurisdiction,
court or administrative agency.
(c) The enforceability of the Principal Agreements may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
or relating to the rights and remedies of creditors generally including, without
limitation, laws relating to fraudulent transfers or conveyances, preferences
and equitable subordination, (ii) general principles of equity (regardless of
whether considered in a proceeding in equity or at law), (iii) an implied
covenant of good faith and fair dealing and (iv) the qualification that certain
other provisions of the Principal Agreements may be unenforceable in whole or in
part under the laws (including judicial decisions) of the State of New York or
the United States of America, but the inclusion of such provisions does not, in
our opinion, affect the validity as against NCB of the Principal Agreements as a
whole, and the limitations on the enforceability of such provisions in the
Principal Agreements do not, in our opinion, make the remedies and procedures
otherwise provided in the Principal Agreements inadequate for enforcing payment
of the obligations governed or secured thereby and for the practical realization
of the principal rights and benefits afforded thereby.
(d) Our opinions are further subject to the following:
(i) The enforceability of the Principal Agreements against NCB
in accordance with their respective terms may be limited by the effect of
standards of good faith, fair dealing and reasonableness which may be applied by
a court to the exercise of certain rights and remedies.
(ii) We assume, for purposes of the opinions concerning
validity, binding effect and enforceability, that the parties to the Principal
Agreements have acted in good faith and without intent to hinder, delay or
defraud creditors.
(iii) We express no opinion as to the enforceability of any
provisions in the Principal Agreements purporting to restrict access to legal or
equitable remedies, to establish evidentiary standards, to waive or modify
service of process requirements under applicable laws, or to control the
determination of venue for any legal or equitable proceedings that may arise in
connection therewith.
(e) We express no opinion as to:
(i) the enforceability of any provision in any of the
Principal Agreements purporting or attempting to (A) waive the defenses of forum
non conveniens or improper venue or (B) confer subject matter jurisdiction on a
court not having independent grounds therefor or (C) modify or waive the
requirements for effective service of process for any action that may be brought
or (D) waive the right of NCB or any other person to a trial by jury or (E)
provide that remedies are cumulative or that decisions by a party are conclusive
or (F) modify or waive the rights to notice, legal defenses, statutes of
limitations or other benefits that cannot be waived under applicable law,
because such provisions are subject to determination by the courts in which
litigation may be instituted that such provisions are fair and reasonable and
comply with and/or are permitted by applicable constitutional provisions and by
applicable laws, regulations and rules of court;
(ii) the effect on enforceability of any of the Principal
Agreements of any decision of an arbitration tribunal or an arbitrator pursuant
to any provision for mandatory or optional arbitration to the extent such
decision does not give effect to the terms of such Principal Agreements or to
applicable law;
(iii) the enforceability of (A) any rights to indemnification
provided for in the Principal Agreements which are violative of public policy
underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation); (B) any rights of setoff under the Pooling
and Service Agreement; or (C) any provisions purporting to provide to any party
the right to receive costs and expenses beyond those reasonably incurred by it;
or
(iv) (A) the existence or sufficiency of any party's
(including, without limitation, NCB's) rights in or title to the real or
personal property described in and encumbered by the respective Loan Documents
relating to the Loans (the "Collateral"); (B) the creation, attachment or
perfection of any security interest in any part of the Collateral, or the
priority of any security interest in the Collateral against any financing
statement, security interest, mortgage, lien or other encumbrance on or covering
the Collateral, or the effect of the due recording of, or failure to record,
such Loan Documents; (C) compliance or non-compliance by NCB or any other person
or entity with federal or state securities laws (including, without limitation,
the Securities Act of 1933, the Trust Indenture Act of 1939 and the Investment
Company Act of 1940); or (D) the classification and treatment of the Loans and
any proceeds therefrom for federal and state income tax purposes.
This opinion letter is furnished to you solely for your benefit and
for the benefit of your successors and assigns, and may not be relied upon by,
nor may copies be delivered to, any other person or entity without our prior
written consent. Finally, we do not undertake to advise you of any changes in
the opinions expressed herein resulting from matters that might hereafter come
or be brought to our attention.
Very truly yours,
SCHEDULE A
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Dominion Bond Rating Service, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2006-IQ16
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS)
EXHIBIT K-7
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT VII
(NATIONWIDE)
MORTGAGE LOAN PURCHASE AGREEMENT
(NATIONWIDE LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between Nationwide Life Insurance Company (the "Seller"), and
Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to Class A-4 Certificate) and RBC Capital Markets
Corporation (collectively, the "Underwriters"), pursuant to an Underwriting
Agreement, between the Purchaser and the Underwriters, dated November 15, 2007
(the "Underwriting Agreement"), and the Class X-1, Class X-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class EI, Class R-I, Class R-II and
Class R-III Certificates (collectively, the "Private Certificates") will be sold
by the Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated (in such capacity, the
"Initial Purchaser") pursuant to a Certificate Purchase Agreement, between the
Purchaser and the Initial Purchaser, dated November 15, 2007 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated June 22, 2007, as supplemented by a
Prospectus Supplement dated November 15, 2007 (together, the "Prospectus
Supplement"), and the Initial Purchaser will offer the Private Certificates
(other than the Class EI, Class R-I, Class R-II and Class R-III Certificates)
for sale in transactions exempt from the registration requirements of the
Securities Act of 1933 pursuant to a Private Placement Memorandum, dated as of
November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $75,000,000. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
as of November 29, 2007, will be executed by the Seller and the applicable
Master Servicer, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing Agreement. In
connection with such transfer and assignment, the Seller shall deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause (a) below) for each
Mortgage Loan and on or prior to the fifth Business Day after the Closing Date,
five limited powers of attorney substantially in the form attached hereto as
Exhibit 4 in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, the applicable Master
Servicer and, in the event of the failure or incapacity of the Trustee and the
applicable Master Servicer, the applicable Special Servicer, to submit for
recording, at the expense of the Seller, any mortgage loan documents required to
be recorded as described in the Pooling and Servicing Agreement and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files (so long as original counterparts have
previously been delivered to the Trustee). The Seller agrees to reasonably
cooperate with the Trustee, the applicable Master Servicer and the applicable
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the Seller, but in no event earlier than 18 months
from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the Seller's expense, after the periods set forth
above; provided, however, the Trustee shall not submit such assignments for
recording if the Seller produces evidence that it has sent any such assignment
for recording and certifies that the Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, the Seller shall deliver to the Custodian on behalf of the
Trustee each of the remaining documents or instruments specified below (with
such exceptions and additional time periods as are permitted by this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The Seller
acknowledges that the term "without recourse" does not modify the duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "LaSalle Bank National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Custodian on behalf of the Trustee or the agents of
either may submit or cause to be submitted for recordation at the expense of the
Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust or the applicable Primary Servicer
(on behalf of the Trustee), as applicable, after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer or the
applicable Primary Servicer, as the case may be, and use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement of the above notice by the bank (with a copy of
such acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit. After the Closing Date, with respect to any letter of
credit that has not yet been assigned to the Trust (or whose beneficiary has not
yet been changed to that Trust), upon the written request of the applicable
Master Servicer or the applicable Primary Servicer, the Seller will draw on such
letter of credit as directed by the Master Servicer or such Primary Servicer in
such notice to the extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the applicable Master Servicer and satisfy Seller's obligations
under this sub-paragraph. Each of the foregoing items shall be delivered by the
Seller in electronic form, to the extent such document is available in such form
and such form is reasonably acceptable to the applicable Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. The Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency to examine and audit all books, records and files pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and shall not be conducted in a
manner that is disruptive to the Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations and audits,
the Seller will make available to such representatives of any of the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Custodian, the
applicable Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Mortgage Loans and the
terms of this Agreement, and the Seller shall cooperate fully with any such
examination and audit in all material respects. On or prior to the Closing Date,
the Seller shall provide the Purchaser with all material information regarding
the Seller's financial condition and access to knowledgeable financial or
accounting officers for the purpose of answering questions with respect to the
Seller's financial condition, financial statements as provided to the Purchaser
or other developments affecting the Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting the Seller in any
material respect. Within 45 days after the Closing Date, the Seller shall
provide the applicable Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the applicable Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's certificate of incorporation or bylaws
documents, (B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) (x) The Nationwide Mortgage Loan Information (as defined in
that certain indemnification agreement, dated as of November 15, 2007,
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Time of Sale
Information, any Free Writing Prospectus (and "ABS informational and
computational material" as defined in Regulation AB) that is not Time of
Sale Information but was sent to investors prior to Time of Sale, the
Memorandum and the Prospectus Supplement as of the date thereof, at the
Time of Sale and as of the Closing Date (any of the foregoing terms not
defined herein, as defined in the Indemnification Agreement) 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 (provided
that the same qualifications and exclusions as set forth in Section 1(a)
of the Indemnification Agreement with respect to the foregoing materials
shall apply mutatis mutandis) and (y) with respect to the Mortgage Loans
and the Seller's role as "originator" (or the role of any third party as
"originator" of any Mortgage Loan for which the Seller was not the
originator) and "sponsor" in connection with the issuance of the
Registered Certificates, the information regarding the Mortgage Loans, the
related Borrowers, the related Mortgaged Properties and/or the Seller
contained in the Prospectus Supplement complies in all material respects
with the applicable disclosure requirements of Regulation AB (any of the
foregoing terms not defined herein, as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Custodian on behalf of the Trustee pursuant to Section 2
is not delivered as and when required (and including the expiration of any grace
or cure period), is not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the applicable Master Servicer as to whether either of the conditions set
forth above has been satisfied shall be conclusive and binding in the absence of
manifest error. The applicable Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the applicable Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or the applicable Special Servicer, as
applicable, shall be required to notify the Seller of the discovery of the
Material Document Defect or Material Breach and the Seller shall be required to
follow the procedures set forth in this Agreement to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's certificate of
incorporation and bylaws.
(d) A certificate of existence for the Seller from the Secretary of
State of Ohio dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Ohio law and has full
corporate power and authority to enter into and perform its obligations
under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitutes a default
under, the certificate of incorporation or bylaws of the Seller, (B) to
the knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture, to
which the Seller is a party or by which it or any of its assets is bound
or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to
this Agreement, or (C) conflicts with or results in a breach or violation
of any law, rule, regulation, order, judgment, writ, injunction or decree
of any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation or
imposition of any lien, charge or encumbrance, will not have a material
adverse effect on the consummation of the transactions contemplated hereby
by the Seller or materially and adversely affect its ability to perform
its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities
under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States, the
laws of the State of New York and the corporate laws of the State of Ohio, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
3.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Paying Agent any disclosure
information relating to any event specifically related to the Seller as required
to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in formatting
reasonably appropriate for inclusion in such form), including, without
limitation, the disclosure required under Items 1117 and 1119 of Regulation AB
and Item 1.03 to Form 8-K. The Seller shall use its best efforts to deliver
proposed disclosure language relating to any event described under Items 1117
and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Paying Agent and the
Purchaser within one Business Day and in any event no later than two Business
Days of the Seller becoming aware of such event and shall provide disclosure
relating to any other event as required to be disclosed on Form 8-K, Form 10-D
or Form 10-K within two Business Days following the Purchaser's request for such
disclosure language. The obligation of the Seller to provide the
above-referenced disclosure materials will terminate upon notice or other
written confirmation from the Purchaser or the Paying Agent that the Paying
Agent has filed a Form 15 with respect to the Trust as to that fiscal year in
accordance with Section 13.8 of the Pooling and Servicing Agreement or the
reporting requirements with respect to the Trust under the Securities Exchange
Act of 1934, as amended, have otherwise been automatically suspended. The Seller
hereby acknowledges that the information to be provided by it pursuant to this
Section will be used in the preparation of reports meeting the reporting
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx 0-00-00, Xxxxxxxx, Xxxx
00000, Attention: Xxxxxxx Xxxxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation, limited liability company or other form of company resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to the entire business of the Seller shall be the successor to
the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Loan
Loan No. Seller(1) Property Name(2) Cut-Off Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
23 NLIC 000 Xxxxxxx Xxxxxx Apartments $23,250,000 000 Xxxxxxx Xxxxxx
00 XXXX Xxxxxxxx Xxxxxxx Shopping Center $12,700,000 0000 Xxxxx XX-00
54 NLIC Holiday Inn Hotel & Suites - Huntington $10,000,000 000 Xxxxx Xxxxxx
77 NLIC Jurupa Self Sufficiency Center $8,000,000 0000 Xxxxxxx Xxxxxxxxx
87 NLIC Silver Drive Warehouse $7,000,000 2561, 2601 and 0000 Xxxxxx Xxxxx
109 NLIC Shops at Onion Creek $5,300,000 00000 Xxxxx XX-00
000 XXXX The Baltic Inn $5,000,000 000 0xx Xxxxxx
000 XXXX Xxxxxxxx Village Shopping Center $3,750,000 0000-0000 Xxxxx Xxxxx Xxxxxx
Totals and Weighted Averages: $75,000,000
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------------------------------------------------------------------------------------------------
23 Xxxxxx XX 00000 10/19/2007 11/01/2017 Xx
00 Xxxxxx XX 00000 08/27/2007 09/01/2017 No
00 Xxxxxxxxxx XX 00000 10/15/2007 11/01/2017 Xx
00 Xxxxxx XX 00000 09/05/2007 10/01/2017 Xx
00 Xxxxxxxx XX 00000 09/04/2007 10/01/2017 No
000 Xxxxxx XX 00000 09/21/2007 10/01/2017 No
000 Xxx Xxxxx XX 00000 09/07/2007 10/01/2017 No
147 Xxxxxx XX 00000 09/14/2007 10/01/2017 No
Mortgage
Loan No. Original Term to Maturity Remaining Term to Maturity Original Amort. Term(9) Mortgage Rate
------------------------------------------------------------------------------------------------------------------------------------
23 120 120 420 6.540%
41 120 118 360 6.280%
54 120 120 300 6.580%
77 120 119 360 5.940%
87 120 119 360 5.670%
109 120 119 360 6.240%
116 120 119 IO 6.230%
147 120 119 360 6.290%
120 119 360 6.221%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
None
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
None
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Nationwide Life Insurance Company
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
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 November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the 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. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November 2007.
SELLER: NATIONWIDE LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its capacity
as Seller, having an address of 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx (the "Seller"), being duly empowered and authorized to
do so, does hereby make, constitute and appoint Xxxxx Fargo Bank, National
Association, having an address of 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (the "Master Servicer"), Centerline Servicing Inc., having an
address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxx X.
Xxxxx (the "Special Servicer"), and LaSalle Bank National Association, having an
address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Global Securities and Trust Services--MS 2007-IQ16 (the "Trustee"),
as the true and lawful attorneys-in-fact for the undersigned, in its name, place
and stead, and for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of the
failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Capmark Master Servicer, the NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned exercise
of power.
3. This instrument is to be construed and interpreted as a limited power
of attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not intended to be
construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted shall
commence and be in full force and effect on the date hereof and such rights,
powers and authority shall remain in full force and effect until the termination
of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November
2007.
Witnessed by: NATIONWIDE LIFE INSURANCE COMPANY
___________________________ By:________________________
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for
said county, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person acted and executed the
instrument. Witness my hand and official seal.
____________________________________
Commission Expires:
EXHIBIT L
[Reserved]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDERS REPORT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Master Servicer
----------------------------------- ----------------------------------- -----------------------------------
Xxxxxx Xxxxxxx Capital I Inc. Capmark Finance Inc. Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxx 000 Xxxxxx Xxxx 00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000-0000 xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx
Xxx Xxxxxxxxx, XX 00000
Contact: General Information Contact: Commercial Mortgage
Number Contact: CMBS Servicing Servicing
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000 Phone Number:
----------------------------------- ----------------------------------- -----------------------------------
Master & Special Servicer Special Servicer
----------------------------------- -----------------------------------
NCB, FSB (Master Servicer) Centerline Servicing Inc.
National Consumer Cooperative 0000 X. X'Xxxxxx Xxxx., Xxxxx 000
Bank (Special Servicer) Xxxxxx, XX 00000
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Contact: Xxxxxxxx Xxxxx Contact: Xxxxx Xxxxxx
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
----------------------------------- -----------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
------------------------------------------------------------------------------------------------------------------------------------
Page 1 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
TBD 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and dividing the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Page 2 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
TBD 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 3 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Principal Reconciliation
---------------------------------------------------------------------------------------------------
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Principal Reconciliation
-----------------------------------------------------------------------------------
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
TBD 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
TBD 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 4 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 5 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Page 6 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch S & P DBRS Fitch S & P DBRS
---------------------------------------------------------------------------------------------------------------
TBD
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. Standard & Poor's Rating Services DBRS, Inc.
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Page 7 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 8 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 9 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 10 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 11 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 12 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 13 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 14 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 15 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 16 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 17 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 18 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Prepayment Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 19 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
-----------------------------------------------------------------------------------------------------------------------------------
Page 20 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payments Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Forclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 21 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Page 22 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Page 23 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Page 24 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date Description
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 25 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
-------------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses * Value or BPO Other Proceeds Liquidation
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Page 26 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Realized Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 27 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 28 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ---------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 29 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 30 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Xxxxxx Xxxxxxx Capital I Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | 1-866-846-4526 |
--------- Series 2007-IQ16 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 12/14/2007
0000 Xxxxxxxxxx Xxxxxx Record Date: 11/30/2007
Xxxxxxxxx, XX 00000-0000 Determination Date: 12/10/2007
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 31 of 31
EXHIBIT N
[Reserved]
EXHIBIT O
[Reserved]
EXHIBIT P
[Reserved]
EXHIBIT Q
[Reserved]
EXHIBIT R
[Reserved]
EXHIBIT S-1A
FORM OF POWER OF ATTORNEY TO CAPMARK MASTER SERVICER
RECORDING REQUESTED BY:
Capmark Finance Inc.
AND WHEN RECORDED MAIL TO:
Capmark Finance Inc.
000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Commercial Mortgage Servicing - Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint CAPMARK FINANCE INC.,
as Capmark master servicer under the Pooling and Servicing Agreement (the
"Capmark Master Servicer"), as its true and lawful attorney-in-fact for it and
in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Capmark Finance Inc. to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by Capmark Finance Inc. of its duties as Capmark Master Servicer
under the Pooling and Servicing Agreement, giving and granting unto Capmark
Finance Inc. full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that Capmark Finance Inc. shall lawfully
do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Capmark
Master Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the Capmark Master
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of November __, 2007.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
2007-IQ16
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, _____________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________
Signature of Notary
(Affix seal in the above blank
space)
EXHIBIT S-1B
FORM OF POWER OF ATTORNEY TO XXXXX FARGO MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo master servicer under the Pooling and
Servicing Agreement (the "Xxxxx Fargo Master Servicer"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank, National Association. to service and administer the
Mortgage Loans (as defined in the Pooling and Servicing Agreement) in connection
with the performance by Xxxxx Fargo Bank, National Association of its duties as
Xxxxx Fargo Master Servicer under the Pooling and Servicing Agreement, giving
and granting unto Xxxxx Fargo Bank, National Association full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank, National Association shall lawfully do or cause to be
done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Xxxxx Fargo
Master Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the Xxxxx Fargo Master
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this __ day of November, 2007.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
2007-IQ16
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, _____________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-1B
FORM OF POWER OF ATTORNEY TO NCB MASTER SERVICER
RECORDING REQUESTED BY:
NCB, FSB
AND WHEN RECORDED MAIL TO:
NCB, FSB
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint NCB, FSB, as NCB
master servicer under the Pooling and Servicing Agreement (the "NCB Master
Servicer"), as its true and lawful attorney-in-fact for it and in its name,
place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable NCB,FSB to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by NCB, FSB
of its duties as NCB Master Servicer under the Pooling and Servicing Agreement,
giving and granting unto NCB, FSB full power and authority to do and perform any
and every act necessary, requisite, or proper in connection with the foregoing
and hereby ratifying, approving or confirming all that NCB, FSB shall lawfully
do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the NCB Master
Servicer shall not, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of a Mortgage Loan
solely under the Trustee's name without indicating the NCB Master Servicer's
representative capacity, (ii) initiate any other action, suit or proceeding not
directly relating to the servicing of a Mortgage Loan (including but not limited
to actions, suits or proceedings against Certificateholders, or against the
Depositor or a Seller (each as defined in the Pooling and Servicing Agreement)
for breaches of representations and warranties) solely under the Trustee's name,
(iii) engage counsel to represent the Trustee in any action, suit or proceeding
not directly relating to the servicing of a Mortgage Loan (including but not
limited to actions, suits or proceedings against Certificateholders, or against
the Depositor or a Seller for breaches of representations and warranties), or
(iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to cause,
and that actually causes, the Trustee to be registered to do business in any
state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this __ day of November, 2007.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
2007-IQ16
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, _____________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2A
FORM OF POWER OF ATTORNEY TO NATIONAL CONSUMER COOPERATIVE
BANK SPECIAL SERVICER
RECORDING REQUESTED BY:
NATIONAL CONSUMER COOPERATIVE BANK
AND WHEN RECORDED MAIL TO:
NATIONAL CONSUMER COOPERATIVE BANK
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint National Consumer
Cooperative Bank, as co-op special servicer under the Pooling and Servicing
Agreement (the "Co-op Special Servicer"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable National Consumer Cooperative Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by National Consumer Cooperative Bank of its duties as Co-op Special
Servicer under the Pooling and Servicing Agreement, giving and granting unto
National Consumer Cooperative Bank full power and authority to do and perform
any and every act necessary, requisite, or proper in connection with the
foregoing and hereby ratifying, approving or confirming all that National
Consumer Cooperative Bank shall lawfully do or cause to be done by virtue
hereof.
Notwithstanding anything contained herein to the contrary, the Co-op
Special Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the Co-op Special
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this __ day of November, 2007.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
2007-IQ16
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, _____________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2B
FORM OF POWER OF ATTORNEY TO GENERAL SPECIAL SERVICER
RECORDING REQUESTED BY:
CENTERLINE SERVICING INC.
AND WHEN RECORDED MAIL TO:
CENTERLINE SERVICING INC.
0000 X. X'Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 7503
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint Centerline Servicing
Inc., as a special servicer under the Pooling and Servicing Agreement (the
"General Special Servicer"), as its true and lawful attorney-in-fact for it and
in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Centerline Servicing Inc. to service and administer the Mortgage Loans
(as defined in the Pooling and Servicing Agreement) in connection with the
performance by Centerline Servicing Inc. of its duties as General Special
Servicer under the Pooling and Servicing Agreement, giving and granting unto
Centerline Servicing Inc. full power and authority to do and perform any and
every act necessary, requisite, or proper in connection with the foregoing and
hereby ratifying, approving or confirming all that Centerline Servicing Inc.
shall lawfully do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the General
Special Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the General Special
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this __ day of November, 2007.
LASALLE BANK NATIONAL ASSOCIATION, as trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series
2007-IQ16
By:____________________________________
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _____________ before me, _____________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT T
[Reserved]
EXHIBIT U
[Reserved]
EXHIBIT V
[Reserved]
EXHIBIT W
[Reserved]
EXHIBIT X
[Reserved]
EXHIBIT Y
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue, MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ16
In accordance with the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc.,
as depositor (the "Depositor"), Capmark Finance Inc., as master servicer with
respect to the MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity
Loans (the "Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide Loans (the
"Xxxxx Fargo Master Servicer"), NCB, FSB, as master servicer with respect to the
NCB, FSB Loans (the "NCB Master Servicer"), National Consumer Cooperative Bank,
as special servicer with respect to the residential cooperative Mortgage Loans
sold to the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage Loans other
than the residential cooperative Mortgage Loans sold to the Depositor by NCB,
FSB (the "General Special Servicer"), LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and the "Custodian," respectively) and
Xxxxx Fargo Bank, National Association, as paying agent, certificate registrar
and authenticating agent (the "Paying Agent," "Certificate Registrar" and
"Authenticating Agent," respectively) with respect to the above referenced
certificates (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class ___ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet
website containing certain information (the "Information") and/or is
requesting the information identified on the schedule attached hereto
(also, the "information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of
the Information, or access thereto, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in making an evaluation in connection with purchasing the
related Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities or agencies to which the
undersigned is subject), and such Information, will not, without the prior
written consent of the Paying Agent, be otherwise disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representative") in any manner
whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
the Paying Agent and the Trust Fund for any loss, liability or expense
incurred thereby with respect to any such breach by the undersigned or any
its Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
--------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
-----------------------------------------
Title:
--------------------------------------
Company:
------------------------------------
Phone:
--------------------------------------
EXHIBIT Z
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $35,000,000 or less, and (b)
less than or equal to 5% of Aggregate Certificate Balance,
whichever is less
To: [Address]
Attn:
From: _____________________________________, in its capacity
as a Master Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of November 1, 2007 (the "Pooling and Servicing
Agreement"), among the Servicer, LaSalle Bank National Association, as
Trustee and Custodian, Xxxxx Fargo Bank, National Association, as Paying
Agent, Authenticating Agent and Certificate Registrar, and others.
Date: _________, 20___
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. NOTIFY YOU THAT THE MORTGAGOR HAS CONSUMMATED A DEFEASANCE OF THE
MORTGAGE LOAN PURSUANT TO THE TERMS OF THE MORTGAGE LOAN, OF THE
TYPE CHECKED BELOW:
____ a full defeasance of the payments scheduled to be due in
respect of the entire Principal Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the Principal Balance of the Mortgage
Loan that represents ___% of the entire Principal Balance of the
Mortgage Loan and, under the Mortgage, has an allocated loan amount
of $____________ or _______% of the entire Principal Balance;
2. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A HERETO,
WHICH EXCEPTIONS THE SERVICER HAS DETERMINED, CONSISTENT WITH THE
SERVICING STANDARD, WILL HAVE NO MATERIAL ADVERSE EFFECT ON THE
MORTGAGE LOAN OR THE DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND THE
TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED THEREIN WERE SATISFIED
IN ALL MATERIAL RESPECTS IN COMPLETING THE DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT (I)
CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN SECTION 2(A)(16) OF
THE INVESTMENT COMPANY ACT OF 1940 AS AMENDED (15 U.S.C. 80A-1),
(II) ARE LISTED AS "QUALIFIED INVESTMENTS FOR `AAA' FINANCINGS"
UNDER PARAGRAPHS 1, 2 OR 3 OF "CASH FLOW APPROACH" IN STANDARD &
POOR'S PUBLIC FINANCE CRITERIA 2000, AS AMENDED TO THE DATE OF THE
DEFEASANCE, (III) ARE RATED `AAA' BY STANDARD & POOR'S, (IV) IF THEY
INCLUDE A PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY CANNOT
VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL OR EARLY
REDEMPTION. SUCH SECURITIES HAVE THE CHARACTERISTICS SET FORTH
BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM COUNSEL
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD) THAT
THE DEFEASANCE WILL NOT RESULT IN AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL WILL
BE OWNED BY AN ENTITY (THE "DEFEASANCE OBLIGOR") AS TO WHICH ONE OF
THE STATEMENTS CHECKED BELOW IS TRUE:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance collateral and
real property securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance collateral;
or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of the
Trust to own the defeasance collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION OF
THE CREDIT, OR THE ACCOUNTANT'S LETTER DESCRIBED BELOW CONTAINED
STATEMENTS THAT IT REVIEWED A BROKER OR SIMILAR CONFIRMATION OF THE
CREDIT, OF THE DEFEASANCE COLLATERAL TO AN ELIGIBLE ACCOUNT (AS
DEFINED IN THE S&P CRITERIA) IN THE NAME OF THE DEFEASANCE OBLIGOR,
WHICH ACCOUNT IS MAINTAINED AS A SECURITIES ACCOUNT BY THE TRUSTEE
ACTING AS A SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO MAKE
THE SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE PROCEEDS OF THE
DEFEASANCE COLLATERAL DIRECTLY TO THE SERVICER'S CERTIFICATE ACCOUNT
IN THE AMOUNTS AND ON THE DATES SPECIFIED IN THE MORTGAGE LOAN
DOCUMENTS OR, IN A PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED
PAYMENTS ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE REAL
PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE PREMIUM SPECIFIED IN
THE MORTGAGE LOAN DOCUMENTS (THE "SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN
CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN ACCORDANCE WITH THE
SERVICING STANDARD, STATING THAT (I) REVENUES FROM PRINCIPAL AND
INTEREST PAYMENTS MADE ON THE DEFEASANCE COLLATERAL (WITHOUT TAKING
INTO ACCOUNT ANY EARNINGS ON REINVESTMENT OF SUCH REVENUES) WILL BE
SUFFICIENT TO TIMELY PAY EACH OF THE SCHEDULED PAYMENTS AFTER THE
DEFEASANCE INCLUDING THE PAYMENT IN FULL OF THE MORTGAGE LOAN (OR
THE ALLOCATED PORTION THEREOF IN CONNECTION WITH A PARTIAL
DEFEASANCE) ON ITS MATURITY DATE (OR, IN THE CASE OF AN ARD LOAN, ON
ITS ANTICIPATED REPAYMENT DATE), (II) THE REVENUES RECEIVED IN ANY
MONTH FROM THE DEFEASANCE COLLATERAL WILL BE APPLIED TO MAKE
SCHEDULED PAYMENTS WITHIN FOUR (4) MONTHS AFTER THE DATE OF RECEIPT,
AND (III) INTEREST INCOME FROM THE DEFEASANCE COLLATERAL TO THE
DEFEASANCE OBLIGOR IN ANY CALENDAR OR FISCAL YEAR WILL NOT EXCEED
SUCH DEFEASANCE OBLIGOR'S INTEREST EXPENSE FOR THE MORTGAGE LOAN (OR
THE ALLOCATED PORTION THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH
YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD, THAT
(I) THE AGREEMENTS EXECUTED BY THE MORTGAGOR AND/OR THE DEFEASANCE
OBLIGOR IN CONNECTION WITH THE DEFEASANCE ARE ENFORCEABLE AGAINST
THEM IN ACCORDANCE WITH THEIR TERMS, AND (II) THE TRUSTEE WILL HAVE
A PERFECTED, FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE DEFEASANCE
(I) PERMIT REINVESTMENT OF PROCEEDS OF THE DEFEASANCE COLLATERAL
ONLY IN PERMITTED INVESTMENTS (AS DEFINED IN THE S&P CRITERIA), (II)
PERMIT RELEASE OF SURPLUS DEFEASANCE COLLATERAL AND EARNINGS ON
REINVESTMENT TO THE DEFEASANCE OBLIGOR OR THE MORTGAGOR ONLY AFTER
THE MORTGAGE LOAN HAS BEEN PAID IN FULL, IF ANY SUCH RELEASE IS
PERMITTED, (III) PROHIBIT ANY SUBORDINATE LIENS AGAINST THE
DEFEASANCE COLLATERAL, AND (IV) PROVIDE FOR PAYMENT FROM SOURCES
OTHER THAN THE DEFEASANCE COLLATERAL OR OTHER ASSETS OF THE
DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE SECURITIES
INTERMEDIARY FOR ADMINISTERING THE DEFEASANCE AND THE SECURITIES
ACCOUNT AND ALL FEES AND EXPENSES OF MAINTAINING THE EXISTENCE OF
THE DEFEASANCE OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF THE
DATE OF DEFEASANCE WAS $___________ [$35,000,000 OR LESS OR LESS
THAN FIVE PERCENT OF POOL BALANCE, WHICHEVER IS LESS] WHICH IS LESS
THAN 5% OF THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS
OF THE DATE OF THE MOST RECENT 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.
3. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS IMPOSED
SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT TO THE
LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS ARE
CONSISTENT WITH THE SERVICING STANDARD.
4. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE DEFEASANCE
OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT ACCOUNTANTS
EXECUTED AND DELIVERED IN CONNECTION WITH THE DEFEASANCE DESCRIBED
ABOVE AND THAT ORIGINALS OR COPIES OF SUCH AGREEMENTS, INSTRUMENTS
AND OPINIONS HAVE BEEN TRANSMITTED TO THE TRUSTEE FOR PLACEMENT IN
THE RELATED MORTGAGE FILE OR, TO THE EXTENT NOT REQUIRED TO BE PART
OF THE RELATED MORTGAGE FILE, ARE IN THE POSSESSION OF THE SERVICER
AS PART OF THE SERVICER'S MORTGAGE FILE.
5. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND CERTIFICATIONS
DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH THE SERVICING
STANDARD SET FORTH IN, AND THE OTHER APPLICABLE TERMS AND CONDITIONS
OF, THE POOLING AND SERVICING AGREEMENT.
6. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS
CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID CONSTITUTE A
SERVICING OFFICER AS OF THE DATE OF THE DEFEASANCE DESCRIBED ABOVE.
7. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO YOU
UPON REQUEST.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification to
be executed as of the date captioned above.
SERVICER: _____________________________
By:____________________________________
Name:
Title:
EXHIBIT AA
Additional Disclosure Notification
**SEND VIA FAX TO (000) 000-0000 AND VIA EMAIL TO
XXX.XXX.XXXXXXXXXXXXX@XXXXXXXXXX.XXX AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS) Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ16
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [_] of the Pooling and Servicing
Agreement, dated as of November 1, 2007, among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Capmark Finance Inc., as master servicer with
respect to The MSMCH Loans, the GECC Loans, the PCFII Loans and the NatCity
Loans (the "Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and Nationwide Loans (the
"Xxxxx Fargo Master Servicer"), NCB, FSB, as master servicer with respect to the
NCB, FSB Loans (the "NCB Master Servicer"), National Consumer Cooperative Bank,
as special servicer with respect to the residential cooperative Mortgage Loans
sold to the Depositor by NCB, FSB (the, "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage Loans other
than the residential cooperative Mortgage Loans sold to the Depositor by NCB,
FSB (the "Co-op Special Servicer"), LaSalle Bank National Association, as
trustee and custodian (the "Trustee" and the "Custodian," respectively) and
Xxxxx Fargo Bank, National Association, as paying agent, certificate registrar
and authenticating agent (the "Paying Agent," "Certificate Registrar" and
"Authenticating Agent," respectively), the undersigned, as [_____________],
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[_______________________], phone number: [_________]; email address:
[___________________].
[NAME OF PARTY],
as [role]
By:_____________________________
Name:
Title:
EXHIBIT BB-1
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively). Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement.
____________________________________________________________________
I, [identify the certifying individual], the senior officer in charge of
securitization of the Depositor, certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report") and all reports on Form 10-D required to
be filed in respect of periods included in the year covered by the
Annual Report (collectively with the Annual Report, the "Reports"),
of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period
covered by the Annual Report is included in the Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in the Annual Report under Item 1123 of Regulation AB, and
except as disclosed in the Reports, the Master Servicers, the
Special Servicers, the Primary Servicers and the Reporting
Sub-Servicers have fulfilled their obligations under the Pooling and
Servicing Agreement or the applicable sub-servicing agreement or
primary servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessments of compliance with servicing criteria for
asset-backed securities required to be included in this report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to the Annual
Report, except as otherwise disclosed in the Annual Report. Any
material instances of noncompliance described in such reports have
been disclosed in the Annual Report.
In giving the certifications above, I have reasonably relied information
provided to me by the following unaffiliated parties:
o Capmark Finance Inc., as Capmark Master Servicer;
o Wells Fargo Bank, National Association, as Xxxxx Fargo Master
Servicer;
o NCB, FSB, as NCB Master Servicer;
o National Consumer Cooperative Bank, as Co-op Special Servicer
o Centerline Servicing Inc., as General Special Servicer;
o LaSalle Bank National Association, as Trustee and Custodian;
o Principal Global Investors, LLC, as Primary Servicer;
o Wells Fargo Bank, National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent;
o Capstone Realty Advisors, LLC, as Primary Servicer;
o Nationwide Life Insurance Company, as Primary Servicer;
o [names of additional Sub-Servicers].
Date: _________________________
______________________________________
[Signature]
[Title]
EXHIBIT BB-2
FORM OF MASTER SERVICER PERFORMANCE CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively). Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement.
I, [identify the certifying individual], certify on behalf of the [Capmark
Master Servicer, Xxxxx Fargo Master Servicer or NCB Master Servicer, as
applicable] to the Depositor and its officers, directors and affiliates, with
the knowledge and intent that they will rely upon this certification in
connection with the certification concerning the Trust to be signed by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the [Capmark
Master Servicer/Xxxxx Fargo Master Servicer/NCB Master Servicer] for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating
to the Trust and all reports of information by the [Capmark Master
Servicer/Xxxxx Fargo Master Servicer/NCB Master Servicer] for
inclusion in the Asset-Backed Issuer Distribution Reports on Form
10-D ("Form 10-D") relating to the Trust (such reports by the
[Capmark Master Servicer/Xxxxx Fargo Master Servicer/NCB Master
Servicer], collectively, the "Master Servicer Periodic Reports");
2. Based on my knowledge, the Master Servicer Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by the Form
10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Master Servicer Periodic
Reports under the provisions of the Pooling and Servicing Agreement
for the calendar year preceding the date of the Form 10-K is
included in the Master Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
[Capmark Master Servicer/Xxxxx Fargo Master Servicer/NCB Master
Servicer] and based on my knowledge and the compliance review
conducted in preparing the [Capmark Master Servicer/Xxxxx Fargo
Master Servicer/NCB Master Servicer]'s compliance statement under
the Pooling and Servicing Agreement in connection with Item 1123 of
Regulation AB, and except as disclosed in the Master Servicer
Periodic Reports, the [Capmark Master Servicer/Xxxxx Fargo Master
Servicer/NCB Master Servicer] has fulfilled its obligations under
the Pooling and Servicing Agreement in all material respects;
5. The report on assessment of compliance with servicing criteria for
asset-backed securities and the attestation report on assessment of
compliance with the relevant Servicing Criteria for asset-backed
securities required under the Pooling and Servicing Agreement to be
delivered by the [Capmark Master Servicer/Xxxxx Fargo Master
Servicer/NCB Master Servicer] are included in the 10-K filing to
which this certification relates in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
provided thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the [Capmark
Master Servicer/Xxxxx Fargo Master Servicer/NCB Master Servicer],
with respect to the Trust's fiscal year [_____], all information
relating to the [Capmark Master Servicer's/Xxxxx Fargo Master
Servicer's/NCB Master Servicer's] assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB.
This Certification is being signed by me as an officer of the
[Capmark Master Servicer/Xxxxx Fargo Master Servicer/NCB Master Servicer]
responsible for reviewing the activities performed by the [Capmark Master
Servicer/Xxxxx Fargo Master Servicer/NCB Master Servicer] under the Pooling and
Servicing Agreement.
Date: _________________________
[ENTITY NAME]
_____________________________________
[Signature]
[Title]
EXHIBIT BB-3
FORM OF SPECIAL SERVICER PERFORMANCE CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively). Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement.
I, [identify the certifying individual], certify on behalf of the [Co-op Special
Servicer/General Special Servicer] to the Depositor and its officers, directors
and affiliates, with the knowledge and intent that they will rely upon this
certification in connection with the certification concerning the Trust to be
signed by an officer of the Depositor and submitted to the Securities and
Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the [Co-op
Special Servicer/General Special Servicer] for inclusion in the
Annual Report on Form 10-K ("Form 10-K") relating to the Trust and
all reports of information by the [Co-op Special Servicer/General
Special Servicer] for inclusion in the Asset-Backed Issuer
Distribution Reports on Form 10-D ("Form 10-D") relating to the
Trust (such reports by the [Co-op Special Servicer/General Special
Servicer], collectively, the "Special Servicer Periodic Reports");
2. Based on my knowledge, the Special Servicer Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by the Form
10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Special Servicer Periodic
Reports under the provisions of the Pooling and Servicing Agreement
for the calendar year preceding the date of the Form 10-K is
included in the Special Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
[Co-op Special Servicer/General Special Servicer], and based on my
knowledge and the compliance review conducted in preparing the
[Co-op Special Servicer/General Special Servicer]'s compliance
statement under the [Pooling and Servicing/Subservicing] Agreement
in connection with Item 1123 of Regulation AB, and except as
disclosed in the Special Servicer Periodic Reports, the [Co-op
Special Servicer/General Special Servicer] has fulfilled its
obligations under the Pooling and Servicing Agreement in all
material respects;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the Pooling and
Servicing Agreement to be delivered by the [Co-op Special
Servicer/General Special Servicer] included in the 10-K filing to
which this certification relates in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
provided thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the [Co-op
Special Servicer/General Special Servicer] with respect to the
Trust's fiscal year [_____] all information relating to the [Co-op
Special Servicer/General Special Servicer]'s assessment of
compliance with the Relevant Servicing Criteria in order to enable
them to conduct a review in compliance with the standards for
attestation engagements issued or adopted by the PCAOB.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; names of master servicers; names of sub-servicers].
This Certification is being signed by me as an officer of the [Co-op
Special Servicer/General Special Servicer] responsible for reviewing the
activities performed by the [Co-op Special Servicer/General Special Servicer]
under the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
______________________________________
[Signature]
[Title]
EXHIBIT BB-4
FORM OF TRUSTEE PERFORMANCE CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively). Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement. Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement.
I, [identify the certifying individual], certify on behalf of the [Trustee] to
the Depositor and its officers, directors and affiliates, with the knowledge and
intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the information, if any, provided by the Trustee for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating
to the Trust and all information provided by the Trustee for
inclusion in Form 10-D ("Form 10-D") relating to the Trust (such
information provided by the Trustee, collectively, the "Trustee
Periodic Information");
2. Based on my knowledge, the Trustee Periodic Information, taken as a
whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading with respect to the period covered by the Form 10-K;
3. Based on my knowledge, all information required to be included in
the Trustee Periodic Information under the provisions of the Pooling
and Servicing Agreement for the calendar year preceding the date of
the Form 10-K is included in the Trustee Periodic Information;
4. I am responsible for reviewing the activities performed by the
Trustee and based on my knowledge and the compliance reviews
conducted in preparing the Trustee's compliance statement under the
Pooling and Servicing Agreement in connection with Item 1123 of
Regulation AB, and except as disclosed in the Trustee Periodic
Information, the Trustee has fulfilled its obligations under the
Pooling and Servicing Agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the Pooling and
Servicing Agreement to be delivered by the Trustee for inclusion in
the 10-K filing to which this certification relates in connection
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 have been included as an exhibit to Form 10-K, except as
otherwise disclosed in Form 10-K. Any material instances of
noncompliance described in such reports have been disclosed in such
reports on Form 10-K.
This Certification is being signed by me as an officer of the
Trustee responsible for reviewing the activities performed by the Trustee under
the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
________________________________________
[Signature]
[Title]
EXHIBIT BB-5
FORM OF PAYING AGENT PERFORMANCE CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively). Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Pooling and Servicing Agreement.
I, [identify the certifying individual], certify on behalf of the Paying Agent
to the Depositor and its officers, directors and affiliates, with the knowledge
and intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the information provided by the Paying Agent for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating
to the Trust and all information provided by the Paying Agent for
inclusion in Form 10-D ("Form 10-D") relating to the Trust (such
information provided by the Paying Agent, collectively, the "Paying
Agent Periodic Information");
2. Based on my knowledge, the Paying Agent Periodic Information, taken
as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by the Form
10-K;
3. Based on my knowledge, all distribution and other information
required to be included in the Paying Agent Periodic Information
under the provisions of the Pooling and Servicing Agreement for the
calendar year preceding the date of the Form 10-K is included in the
Paying Agent Periodic Information;
4. I am responsible for reviewing the activities performed by the
Paying Agent and based on my knowledge and the compliance reviews
conducted in preparing the Paying Agent's compliance statement under
the Pooling and Servicing Agreement in connection with Item 1123 of
Regulation AB, and except as disclosed in the Paying Agent Periodic
Information, the Paying Agent has fulfilled its obligations under
the Pooling and Servicing Agreement; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the Pooling and
Servicing Agreement to be delivered by the Paying Agent for
inclusion in the 10-K filing to which this certification relates in
connection with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to Form 10-K,
except as otherwise disclosed in Form 10-K. Any material instances
of noncompliance described in such reports have been disclosed in
such reports on Form 10-K.
This Certification is being signed by me as an officer of the Paying
Agent responsible for reviewing the activities performed by the Paying Agent
under the Pooling and Servicing Agreement.
Date: _________________________
[ENTITY NAME]
[Signature]
[Title]
EXHIBIT BB-6
FORM OF REPORTING SUB-SERVICER PERFORMANCE CERTIFICATION
Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16, issued
pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Pooling and Servicing Agreement"), among
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Capmark Finance Inc., as master servicer with respect to the MSMCH
Loans, the GECC Loans, the PCFII Loans and the NatCity Loans (the
"Capmark Master Servicer"), Xxxxx Fargo Bank, National Association,
as master servicer with respect to the RBC Loans and the Nationwide
Loans (the "Xxxxx Fargo Master Servicer"), NCB, FSB, as master
servicer with respect to the NCB, FSB Loans (the "NCB Master
Servicer"), National Consumer Cooperative Bank, as special servicer
with respect to the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "Co-op Special Servicer"), Centerline
Servicing Inc., as special servicer with respect to the Mortgage
Loans other than the residential cooperative Mortgage Loans sold to
the Depositor by NCB, FSB (the "General Special Servicer"), LaSalle
Bank National Association, as trustee and custodian (the "Trustee"
and the "Custodian," respectively) and Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and
authenticating agent (the "Paying Agent," "Certificate Registrar"
and "Authenticating Agent," respectively); and the Sub-Servicing
Agreement, dated as of [_____][__], [___] (the "Sub-Servicing
Agreement") between [identify parties]. Capitalized terms used
herein but not defined herein have the respective meanings given
them in the Sub-Servicing Agreement or, if not defined in the
Sub-Servicing Agreement, then the meanings set forth in the Pooling
and Servicing Agreement.
I, [identify the certifying individual], certify on behalf of the [SUB-SERVICER]
to the Depositor and its officers, directors and affiliates, with the knowledge
and intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the
Sub-Servicer to the applicable Master Servicer for inclusion in the
Annual Report on Form 10-K ("Form 10-K") relating to the Trust and
all reports of information provided by the Sub-Servicer to the
applicable Master Servicer for inclusion in the Asset-Backed Issuer
Distribution Reports on Form 10-D ("Form 10-D") relating to the
Trust (such reports by the Sub-Servicer collectively, the
"Sub-Servicer Periodic Reports");
2. Based on my knowledge, the Sub-Servicer Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading with respect to the period covered by the Form 10-K;
3. Based on my knowledge, all servicing and other information required
to be provided in the Sub-Servicer Periodic Reports under the
provisions of the Sub-Servicing Agreement for the calendar year
preceding the date of the Form 10-K is included in the Sub-Servicer
Periodic Reports;
4. Based on my knowledge and the compliance review conducted in
preparing the Sub-Servicer's compliance statement under the
Sub-Servicing Agreement in connection with Item 1123 of Regulation
AB, and except as disclosed in the Sub-Servicer Periodic Reports,
the Sub-Servicer has fulfilled its obligations under the
Sub-Servicing Agreement in all material respects;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the related
Sub-Servicing Agreement to be delivered by the Sub-Servicer for
inclusion in the 10-K filing to which this certification relates in
connection with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18, have been provided thereby, and disclose any and
all material instances of noncompliance described in such reports;
and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the Sub-Servicer
with respect to the Trust's fiscal year [_____] all information
relating to the Sub-Servicer's assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; names of master servicers; names of other sub-servicers].
This Certification is being signed by me as an officer of the
Sub-Servicer responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Agreement.
Date: _________________________
[ENTITY NAME]
________________________________________
[Signature]
[Title]
EXHIBIT CC
CENTERLINE NAMING CONVENTION
SCHEDULE I
MSMCH LOAN SCHEDULE
Mortgage Loan No. Mortgage Loan Seller(1) Property Name(2)
----------------- ----------------------- -------------------------------------------------------------------------------------
3 XXXXX Xxxxxx Town Center
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 120 Longs Pond Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 7004 East Xxxxx Avenue (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxx Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxx Xxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 10211 North I-35 Service Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 7598 NW 6th Avenue (I)
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxxxxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1500 NC Hwy 39 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 28001 Xxxxxx Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 00000 Xxxx Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 12301 Cumberland Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1899 North US Hwy 1 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 00xx Xxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxxxxxx Xxxxxx X.X. Xxx 000 (I)
5 MSMCH USFS Industrial Distribution Portfolio - W137 N9245 Highway 45 (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 111 Alliant Drive (I)
5 MSMCH USFS Industrial Distribution Portfolio - 755 Xxxxxx Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 40 Fort Xxxxx Boulevard (I)
5 MSMCH USFS Industrial Distribution Portfolio - 8000 Bavaria Road (I)
5 MSMCH USFS Industrial Distribution Portfolio - 10410 South 50th Place (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1 Quality Lane (I)
5 MSMCH USFS Industrial Distribution Portfolio - 2850 Selma Highway (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxxx Xxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1350/1400 North 10th Street (I)
5 MSMCH USFS Industrial Distribution Portfolio - 1044/1045 Garden Street (I)
5 MSMCH USFS Industrial Distribution Portfolio - 4601 32nd Avenue South (I)
5 MSMCH USFS Industrial Distribution Portfolio - 5353 Xxxxxx Xxxx North (I)
5 MSMCH USFS Industrial Distribution Portfolio - 125 Gardenville Parkway West (I)
5 MSMCH USFS Industrial Distribution Portfolio - 6315 Xxxx X Xxxxxxxx Drive (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000-000 Xxxxx Xxxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 0000 Xxxxxxxx Xxxxxx (I)
5 MSMCH USFS Industrial Distribution Portfolio - 000 Xxxx Xxxxx (I)
6 MSMCH Wyvernwood Garden Apartments
8 MSMCH Milford Crossing
11 MSMCH Solana Beach Corporate Center III & IV
13 MSMCH Amalfi Hotel
15 MSMCH 20770-20810 Xxxxxxx Xxxxxx
00 MSMCH Centerpoint Medical Office Building
18 MSMCH Banner Bank Building
20 MSMCH Art Institute Student Housing
24 MSMCH Archview Apartments
25 MSMCH Exeter Portfolio - 0000 Xxxxx Xxxxx Xxxxxxxxx (II)
25 MSMCH Exeter Portfolio - 000 Xxxxxxxxxxx Xxxxx (II)
25 MSMCH Exeter Portfolio - 00000 Xxxxxxxx Xxxxx (II)
26 MSMCH Varsity Apartments
27 XXXXX Xxxxxxx / Xxxxxx Buildings
28 MSMCH Cotton Corporate Center Flex
29 MSMCH Cotton Corporate Center Xxxxxx
00 XXXXX XXXX Xxxxxxxxx - Xxxxxx (XXX)
30 MSMCH SROA Portfolio - Danville (III)
30 MSMCH SROA Portfolio - Paintsville (III)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxxx (XXX)
30 MSMCH SROA Portfolio - Winchester 2 (III)
30 MSMCH SROA Portfolio - Mt. Sterling (III)
30 MSMCH SROA Portfolio - Lawrenceburg (III)
30 MSMCH SROA Portfolio - Wheelersburg, Duis Street (III)
30 MSMCH SROA Portfolio - Morehead (III)
30 MSMCH SROA Portfolio - Winchester I (III)
30 MSMCH SROA Portfolio - Berea (III)
30 MSMCH SROA Portfolio - Xxxxx Xxxx (III)
30 MSMCH SROA Portfolio - Xxxxxxx Xxxxxx (III)
30 MSMCH SROA Portfolio - Xxxxxxx Storage (III)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxx (XXX)
00 XXXXX XXXX Xxxxxxxxx - Xxxxxxxxxxxx, Xxxx River Road (III)
30 MSMCH SROA Portfolio - Salyersville (III)
30 MSMCH SROA Portfolio - Greenwich (III)
30 MSMCH SROA Portfolio - West Liberty, Main Street (III)
30 MSMCH SROA Portfolio - West Liberty, Xxxxx Avenue (III)
30 MSMCH SROA Portfolio - Whitesburg (III)
30 MSMCH SROA Portfolio - All in One (III)
32 MSMCH Bank of America - 00 Xxxx 00xx Xxxxxx
33 MSMCH Northport Industrial Center
35 MSMCH Plaza on the Green
36 MSMCH West Lafayette Multifamily Portfolio
37 MSMCH Kmart Portfolio - Ukiah Home Depot (IV)
37 MSMCH Kmart Portfolio - Xxxx Kmart (IV)
37 MSMCH Kmart Portfolio - Riverside Kmart (IV)
38 XXXXX Xxxxxxxx Plaza - Magnolia Avenue
39 MSMCH 00000 Xxxxxxxxxxxx Xxxxxxx
48 MSMCH Indiana and Purdue Multicampus Student Housing Portfolio - Purdue (VII)
48 MSMCH Indiana and Purdue Multicampus Student Housing Portfolio - Indiana (VII)
50 MSMCH 0000 00xx Xxxxxx XX
52 MSMCH Ridgewood Commons
55 MSMCH Plaza 7-21
57 MSMCH Regency Apartments
61 MSMCH Hacienda Crossing
62 MSMCH Peninsula Corporate Center
64 MSMCH Lafayette Center
67 XXXXX Xxxxxxx Inn & Suites - Ft. Xxxxx
69 MSMCH Stoneridge Medical Center
70 MSMCH Suburban Court
71 MSMCH 0000 X Xxxxxx XX
72 MSMCH Crestview Eastern Milestone Portfolio - Shoppes at Milestone (IX)
72 MSMCH Crestview Eastern Milestone Portfolio - Crestview (IX)
00 XXXXX Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxxxx Xxxxxx (IX)
74 XXXXX Xxxxxxx Gateway
78 MSMCH Bolingbrook Transport Center
79 XXXXX Xxxxxxx-Xxxxxx Medical Clinic
80 MSMCH Ohio Portfolio - Atrium of Westlake (A)
81 MSMCH Ohio Portfolio - Rockwood Center Office Building (A)
82 XXXXX Xxxxxxxxxx Gateway
83 MSMCH 2-18 & 00 Xxxx 00xx Xxxxxx
89 MSMCH 951-953 Amsterdam Ave
90 MSMCH Studio City Center
00 XXXXX Xxxx Xxxxxx & Xxxxx Street Self Storage
94 MSMCH Dahlonega Portfolio - Mountain View Townhomes (XI)
94 MSMCH Dahlonega Portfolio - Riverside Duplexes (XI)
00 XXXXX Xxxxxxxxx Xxxxxxxxx - Xxxxxxxx Xxxxxxx (XI)
94 MSMCH Dahlonega Portfolio - Copper Creek Duplexes (XI)
94 MSMCH Dahlonega Portfolio - Creekside Duplexes (XI)
95 MSMCH Walgreens Plaza
97 MSMCH Holiday Inn & Suites Conference Center
99 XXXXX Xxxxxxx Inn - Seffner
100 MSMCH Walgreens - Canandaigua
102 MSMCH 10 Marketplace Shopping Center
103 MSMCH Walgreens - Brooklyn
107 XXXXX Xxxxxxxx Office
108 MSMCH Dakota Ridge II
112 MSMCH Oceanside Self Storage
113 MSMCH 0 Xxxxxx Xxxxxx
000 XXXXX Xxxx - Xxxxxx, XX I
117 MSMCH Clermont Shopping Center
119 MSMCH Cadillac Plaza
120 MSMCH Why Self Storage
000 XXXXX Xxxxxxxx Xxxxxxxxx Retail
122 XXXXX Xxxxxxxx Safeway
123 MSMCH Copelands Building
124 MSMCH Waterford Plaza
125 MSMCH Med Centre Shopping Center
126 MSMCH Brooklyn Centre
128 XXXXX Xxxx Place
129 MSMCH Shoppes at Forest Hill
130 MSMCH Fifth South Plaza
131 XXXXX Xxxxxxxxx Crossing
000 XXXXX Xxxxxxxxxx Xxxxxx Shops
134 XXXXX Xxxxxxx Park Shoppes II
137 MSMCH Spenceola Main Street Center
139 MSMCH Perimeter Park
140 MSMCH Kings Manor MHP
143 MSMCH Dover Crossing Shops
145 MSMCH Walgreens - Shelbyville
000 XXXXX Xxxx Xxxxxx at Canton
000 XXXXX XXXX Xxxxxxxx - Xxxxxxx Xxxxxxxxx
155 MSMCH Forest Hills Apartments
000 XXXXX Xxxxxxx Xxxxxx
000 XXXXX Xxxxxxxx Xxxxxx Xxxxxxx
160 MSMCH 00 Xxxxxx Xxxxxx
162 MSMCH ACRE Rutgers University Student Housing Portfolio
163 XXXXX Xxxxxx Square
165 MSMCH Rite Aid - Wooster
167 MSMCH 0000 Xxxxxxxx Xxxxxx
168 MSMCH Colony East Townhomes
169 MSMCH Katy Plaza
170 MSMCH 0 Xxxxxxx Xxxxx
172 MSMCH 0000 Xxxx Xxxx Xxxxxxxxx
173 MSMCH Parkchase Shopping Center
174 XXXXX Xxxxxxx Place
177 XXXXX Xxxxx River Shopping Center
179 MSMCH Florida City Commons
180 MSMCH 1523 - 0000 Xxxx Xxxxxx
183 XXXXX Xxxxxxx - Xxxxxx
184 MSMCH 000-000 Xxxx Xxxxxx, Xxxxxxxxxxx Xxxxx, XX
185 MSMCH Melrose Center Shops
186 MSMCH 00 Xxxxxx Xxx
000 XXXXX Xxxxx Retail Portfolio - Green Oaks (XIII)
000 XXXXX Xxxxx Retail Portfolio - Crossroads Center (XIII)
000 XXXXX Xxxxx Xxxxx Shops
192 MSMCH Dumbarton Building
194 MSMCH Victory View II
202 MSMCH Otay Mesa Parking Facility
000 XXXXX Xxxxxxxxxxx Xxxx Retail
206 XXXXX Xxxxxx Village Shopping Center
207 MSMCH AutoZone - NJ
210 XXXXX Xxxxxxx Industrial
211 MSMCH National Tire & Battery - St. Xxxxxxx
212 MSMCH Creekside Shops
213 XXXXX Xxxxxxxx KeyBank Building
214 MSMCH 615 Day Hill Road
216 XXXXX Xxxxxx Creek Shops
221 MSMCH Nantucket Tutto Sfoglia
223 MSMCH FedEx Building
231 MSMCH 00000 X. Xxxxxxxxxx, Xxxxx 000
Totals and
Weighted Averages:
Mortgage Loan No. Cut-Off Date Balance(3) Street Address
----------------- ----------------------- --------------------------------------------------------------------------------------
3 $110,000,000 000 Xxxxxx Xxxx Center
5 $8,621,250 00000 Xxxxxxx Xxxxxx
5 $5,272,500 000 Xxxxx Xxxx Xxxx
5 $4,503,000 0000 Xxxx Xxxxx Xxxxxx
5 $4,417,500 0000 Xxxx Xxxxxxxx Xxxxxx
5 $4,307,775 0000 Xxxxxxxxxxx Xxxx
5 $4,089,750 000 Xxxxxxxx Xxxxx
5 $3,964,350 0000 Xxxx Xxxxxxx Xxxx
5 $3,762,000 0000 Xxxxxxxxx Xxxx
5 $3,719,250 10211 North IH 35
5 $3,562,500 0000 XX 0xx Xxxxxx
5 $3,405,750 00000 Xxxxxxxxxx Xxxx
5 $3,184,875 0000 XX Xxxxxxx 39
5 $2,565,000 00000 Xxxxxx Xxxx
5 $2,436,750 00000 Xxxx Xxxxxxxx Xxxxxx
5 $2,351,250 00000 Xxxxxxxxxx Xxxx
5 $2,208,750 0000 Xxxxx XX Xxxxxxx 0
5 $2,137,500 0000 00xx Xxxxxx Xxxxx
5 $2,137,000 000-000 and 000-000 Xxxxxxxxx Xxxxxx
0 $2,023,500 West 000 X0000 Xxxxxxx 000
5 $1,923,750 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx
5 $1,881,000 000 Xxxxxxx Xxxxx
5 $1,681,500 000 Xxxxxx Xxxx
5 $1,681,500 00 Xxxx Xxxxx Xxxxxxxxx
5 $1,574,625 0000 Xxxxxxx Xxxx
5 $1,447,800 00000 Xxxxx 00xx Xxxxx
5 $1,382,250 0 Xxxxxxx Xxxx
5 $1,309,575 0000 Xxxxx Xxxxxxx
5 $1,130,025 0000 Xxxxxxxxx Xxxxx
5 $1,058,063 0000/0000 Xxxxx 00xx Xxxxxx
5 $1,034,550 0000/0000 Xxxxxx Xxxxxx
5 $1,008,188 0000 00xx Xxxxxx Xxxxx
5 $794,438 0000 Xxxxxx Xxxx North
5 $755,250 000 Xxxxxxxxxxx Xxxxxxx West
5 $612,750 0000 Xxxx X Xxxxxxxx Xxxxx
5 $548,625 0000 Xxxxxxxx Xxxxxx
5 $513,000 000-000 Xxxxx Xxxxxxxxx Xxxxxx
5 $513,000 0000 Xxxxxxxx Xxxxxx
5 $233,700 000 Xxxxx Xxxx Xxxxx
6 $86,000,000 0000 Xxxx Xxxxxxx Xxxxxxxxx
8 $75,500,000 0000 Xxxxxx Xxxx Xxxx
11 $37,330,000 420 & 000 Xxxxxxx Xxxxxx
13 $37,000,000 00 Xxxx Xxxxxx Xxxxxx
15 $36,250,000 20770-20810 Xxxxxxx Xxxxxx
00 $33,500,000 00000 Xxxx 00xx Xxxxxx
18 $26,150,000 000 Xxxx Xxxxxxx Xxxxxx
20 $25,885,000 000 Xxxxxx Xxxxxx
24 $22,100,000 0000 Xxxx Xxxxx
25 $13,200,000 0000 Xxxxx Xxxxx Xxxxxxxxx
25 $5,500,000 000 Xxxxxxxxxxx Xxxxx
25 $3,200,000 10641 - 10645 Xxxxxxxx Xxxxx
00 $21,775,000 0000-0000,1314,1316,1335-1345,1355,1365-1395,1555 X. Xxxxxxx; 301,305,216,218,218 1/2,
000,000 X.00xx Xxxxxx; 1332-1334,1336 X. Xxxxxxxxxx; 0000 Xxxxx Xxxx Xxxxxx;
0000 Xxxxx Xxxx Xxxxxx; 0000-0000 Xxxxx Xxxx Xxxxxx; 000 Xxxxxxx Xxxxx Xxxxx;
203-492 Varsity Lane
27 $20,170,000 0000 Xxxxxxx Xxxxxx; 0000 Xxxxxx Xxxxx
28 $20,050,000 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx
29 $20,000,000 0000 Xxxx Xxxxxx Xxxxxx Xxxx
30 $2,298,546 0000 Xxxxxx Xxxxxx
30 $2,078,938 000 Xxxxxxxxx Xxxxx
30 $2,078,938 000 Xxxxxx Xxxxxx Xxxx
30 $1,976,455 0000 Xxxxxxx Xxxxx
30 $1,639,726 0000 Xxxxxxx Xxxxx
30 $1,449,400 0000 Xxxxxxx Xxxx
30 $1,346,917 0000 Xxxxxxxx Xxx
30 $1,346,917 00 Xxxx Xxxxxx
30 $1,229,794 0000 Xxxxxxxxxxxx Xxxx
30 $819,863 0000 Xxxxxxxx Xxxx
30 $790,582 000 Xxxxxxx Xxxxx
30 $541,696 000 Xxxxxxxx Xxxxx 825
30 $474,349 000 X. Xxxxxx Xxxxxx
30 $427,500 000 Xxxx Xxxxxx Xxxxxx
30 $409,931 000 Xxxxxx Xxxx
30 $263,527 0000 Xxxx Xxxxx Xxxx
30 $219,606 0000 Xxxx Xxxxxxx Xxxxxxx
30 $163,973 00 Xxxx Xxxx Xxxxxx
30 $146,404 0000 Xxxx Xxxx Xxxxxx
30 $102,483 00 Xxxxx Xxxxxx
30 $102,483 00 Xxx Xxxxxxx Xxxxxx
30 $76,130 000 Xxxx Xxxxxx Xxxxxx
32 $18,000,000 00 Xxxx 00xx Xxxxxx
33 $17,200,000 Xxxxxxxxx Xxxx xxx Xxxxx Xxxxxx Xxxx
00 $15,000,000 0000 Xxxx Xxxxxxxxx Xxxxxx
36 $14,800,000 2501, 0000 Xxxxxxxx Xxxx Xxxx; 0000 Xxxxx Xxxxxx Xxxx
37 $6,950,342 000 Xxxxx Xxxxxxx Xxxxxx
37 $4,476,020 000 Xxxxxxx Xxxxx Xxxx
37 $2,474,322 000 Xxxx Xxxxxxxxxx Xxxxxxxxx
38 $13,650,000 10303-10357 Xxxxxxxx Xxxxxx
00 $13,211,942 00000 Xxxxxxxxxxxx Xxxxxxx
48 $9,229,500 000 Xxxxxxxxxxxx Xxxxxx; 000 Xxxx Xxxxxx; 20 Littleton / 120, 208, 218 Xxxxxxx /
340-344 Vine / 207 & 215 West Xxxxxx; 435, 000 Xxxxx Xxxxx Xxxxxx
48 $2,295,500 000 Xxxxxxx Xxxxx; 000 Xxxx 00xx Xx.
50 $10,944,802 0000 00xx Xxxxxx, XX
52 $10,120,000 00 X. Xxxxxxxxx Xxxxxx; 000-000 X. Xxxxx Xxxxxx Avenue
55 $10,000,000 000 Xxxx 0000 Xxxxx Xxxxxx
57 $9,962,497 0000 Xxxxxx Xxxx Xxxx
61 $9,500,000 0000 Xxxxx Xxxxxxx Xxxxxx
62 $9,500,000 000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
64 $9,200,000 000-000 Xxxxxx Xxxx Xxxxx
67 $8,725,833 00000 Xxxxxxxxx Xxxxxx Xxxx
69 $8,500,000 0000 Xxxxxx Xxxxxxxxx Xxxx
70 $8,480,000 107 & 000 Xxxxxxx Xxxxxx
71 $8,457,350 0000 X Xxxxxx XX
72 $2,900,000 0000 X. Xxxx Xxxx Xxxx
72 $2,750,000 0000 Xxxxxx Xxxxxxx (X.X. Xxxxxxx 78)
72 $2,688,000 30350 SR-181
74 $8,250,000 0000 Xxxxxxxx
78 $7,960,474 000 Xxxx Xxx Xxxxxxx Xxxxx
79 $7,856,311 0000 Xxxx Xxxxxxxx Xxxxxx
80 $5,545,191 00000 Xxxxxxx Xxxx
81 $2,173,115 0000 Xxxxxxxx Xxxx
82 $7,565,000 0000-0000 Xxxxxxxxxx Xxxx
00 $7,500,000 2-18 & 00 Xxxx 00xx Xxxxxx
89 $6,800,000 000-000 Xxxxxxxxx Xxxxxx
00 $6,800,000 11032-11056 Xxxxxxx Xxxxxxxxx
00 $6,486,435 0000 Xxxx Xxxxxx & 000 Xxxxx Xxxxxx
94 $1,947,327 00 - 00 Xxxxxxxx Xxxx Xxxxx Xxxx
94 $1,828,103 00 Xxxxxxxxx Xxxxxx
94 $1,490,302 000 - 000 Xxxxxxxx Xxxx Xx., 00 -83 Vista Court
94 $663,681 2, 16, 22, 38 & 00 Xxxxxx Xxxxx Xxxxx
94 $309,983 121 Xxxxxxx County Parkway
95 $6,200,000 0 Xxxxxxx Xxxxxx
97 $6,085,034 1051 Xxxxxx Xxxxxx Xxxx Xx. Xxxxx
00 $5,779,484 00000 Xxxxx Xxxxxxx Xxxxxxxxx
100 $5,720,000 00 Xxxxxxx Xxxxxxxxx
102 $5,673,010 0000 Xxxx 00xx Xxxxxx; 0000 Xxxxxx Xxxxxx
103 $5,640,000 0000-0000 Xxxxx Xxxxxx Xxxxxx
107 $5,350,000 000 Xxxxxxxxx Xxxx
108 $5,350,000 0000 Xxxxxx Xxxxx Xxxxx
112 $5,150,000 0000 Xxxxxxxxx Xxxxxxxxx
113 $5,120,271 0 Xxxxxx Xxxxxx
115 $5,050,000 Costco Way
117 $4,984,185 000-000 Xxxx X.X. 50
119 $4,900,000 14325-14397 Xxxxxx Road
120 $4,900,000 0 Xxxx Xxxxx Xxxxxx & 0 Xxxx Xxxxx Xxxxxx
121 $4,900,000 00000 X. 00xx Xxxxxx
122 $4,850,000 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx
123 $4,827,424 000 XX Xxxxxx Xxxxxx
124 $4,826,000 0000 Xxxxx Xxxxxxxx
125 $4,800,000 0000 Xxxxxxxx Xxxx
000 $4,782,543 0000-0000 Xxxx 00xx Xxxxxx
128 $4,650,000 0000 Xxxxxxx Xxxx Xxxxxxx
000 $4,625,000 0000 Xxxxxx Xxxx Xxxxxx
000 $4,500,000 000 Xxxx 000 Xxxxx
131 $4,378,977 00000 Xxx Xxx
132 $4,350,000 0000 Xxxxxxxxxx Xxxxxx
134 $4,200,000 0000 Xxxxx Xxxx
137 $4,100,000 000 - 000 Xxxxx Xxxx Xxxxxx
000 $4,000,000 8705 & 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
140 $4,000,000 0000 Xxxx Xxxxxxxx Xxxxxx
143 $3,887,288 0000 Xxxx Xxxxxxxx Xxxxxxxxx
145 $3,800,000 0000 Xxxx Xxxxx Xxxx 44
150 $3,628,671 0000 Xxxxxxxx Xxxxxxx
153 $3,500,000 0000-0000 Xxxxxxx Xxxxxxxxx
155 $3,490,884 0000 Xxxxxx Xxxxx
156 $3,450,000 0000-0000 Xxxx Xxxxxx
159 $3,400,000 0000 Xxxxx Xxxx Xxxx
000 $3,360,000 00 Xxxxxx Xxxxxx
000 $3,337,767 12, 59, 00 Xxxxxxxxxx Xxxxxx; 28, 62, 66, 00 Xxxxxx Xxxxxx; 00 Xxx Xxxxxx
163 $3,300,000 000 Xxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx (XX Route 522)
165 $3,291,527 0000 Xxxxxxxxx Xxxx
167 $3,200,000 0000 Xxxxxxxx Xxxxxx
168 $3,200,000 00 Xxxxxxx Xxxxx
169 $3,200,000 0000 Xxxxx Xxxx; 2050-2220 Katy Hockley Cut-Off
170 $3,188,500 0 Xxxxxxx Xxxxx
172 $3,089,591 0000 Xxxx Xxxx Xxxxxxxxx
173 $3,000,000 00000 Xxxxxxxx Xxxxxxxx Xxxxx
174 $3,000,000 000 Xxxxx Xxxxxx Xxxxxx
177 $2,975,000 0 Xxxxx Xxxx Xxxxx
000 $2,791,054 00000 Xxxxx Xxxxx Xxxxxxx
000 $2,789,409 1523 - 0000 Xxxx Xxxxxx
183 $2,620,000 0000 Xxxx 00xx Xxxxxx
184 $2,560,000 000-000 Xxxx Xxxxxx
185 $2,506,802 0000-0000 Xxxxxxxx Xxxx
186 $2,500,000 00 Xxxxxx Xxx
189 $1,490,000 0000-0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx
189 $913,500 00000 XxxXxxxxx Xxxxxxxxx
191 $2,352,307 0000-0000 Xxxxxxx 000
192 $2,300,000 0000 Xxxxxxx Xxxx Xxxx
000 $2,230,000 0000-0000 X. Xxxxxxxxx Xxx
202 $2,000,000 Various
203 $2,000,000 0000 Xxxxxxxxxxx Xxxx
206 $1,992,726 0000 Xxxxx Xxxx Xxxx
207 $1,950,000 000 Xxxxx Xxxx Xxxxxx
210 $1,938,325 231 & 000 Xxxxxx Xxxxxx
211 $1,934,554 0000 Xxxxxxxx Xxxxxx
212 $1,903,774 3940 - 0000 Xxxxxxxxxxx Xxxx
213 $1,867,869 00000 XX Xxxxxxxx Xxxxxxxxx
214 $1,740,000 000 Xxx Xxxx Xxxx
000 $1,709,410 000 Xxxx Xxxx Xxxxxx
221 $1,421,000 00X Xxxxxxxx Xxxxxx
223 $1,376,346 000 Xxxx Xxxx Xxxxx
000 $848,500 00000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Totals and
Weighted Averages: $1,260,267,256
Mortgage Loan No. City State Zip Code Cut-Off Date Balance per Unit or SF Note Date Maturity Date
----------------- ---------------------- ----- -------- ----------------------------------- ---------- -------------
3 Xxxxxxxx XX 00000 $215 07/25/2007 08/08/2017
5 La Mirada CA 90638 $52 07/03/2007 08/01/2017
5 Lexington SC 29072 $52 07/03/2007 08/01/2017
5 Tampa FL 33610 $52 07/03/2007 08/01/2017
5 Las Vegas NV 89032 $52 07/03/2007 08/01/2017
5 Charlotte NC 28269 $52 07/03/2007 08/01/2017
5 Livermore CA 94551 $52 07/03/2007 08/01/2017
5 Phoenix AZ 85043 $52 07/03/2007 08/01/2017
5 Severn MD 21144 $52 07/03/2007 08/01/2017
5 Oklahoma City OK 73131 $52 07/03/2007 08/01/2017
5 Boca Raton FL 33487 $52 07/03/2007 08/01/2017
5 Manassas VA 20109 $52 07/03/2007 08/01/2017
5 Zebulon NC 27597 $52 07/03/2007 08/01/2017
5 Wixom MI 48393 $52 07/03/2007 08/01/2017
5 Centennial CO 80111 $52 07/03/2007 08/01/2017
5 Fishers IN 46038 $52 07/03/2007 08/01/2017
5 Ormond Beach FL 32174 $52 07/03/2007 08/01/2017
5 Plymouth MN 55442 $52 07/03/2007 08/01/2017
5 Norwich CT 06360 $52 07/03/2007 08/01/2017
5 Menomonee Falls WI 53051 $52 07/03/2007 08/01/2017
5 Garland TX 75042 $52 07/03/2007 08/01/2017
5 Houston TX 77032 $52 07/03/2007 08/01/2017
5 Clifton Park NY 12065 $52 07/03/2007 08/01/2017
5 Salem VA 24153 $52 07/03/2007 08/01/2017
5 Twinsburg OH 44087 $52 07/03/2007 08/01/2017
5 Phoenix AZ 85044 $52 07/03/2007 08/01/2017
5 Streator IL 61364 $52 07/03/2007 08/01/2017
5 Montgomery AL 36108 $52 07/03/2007 08/01/2017
5 Cincinnati OH 45014 $52 07/03/2007 08/01/2017
5 Paducah KY 42001 $52 07/03/2007 08/01/2017
5 Greensburg PA 15601 $52 07/03/2007 08/01/2017
5 Grand Forks ND 58201 $52 07/03/2007 08/01/2017
5 Plymouth MN 55442 $52 07/03/2007 08/01/2017
5 Cheektowaga NY 14224 $52 07/03/2007 08/01/2017
5 Omaha NE 68110 $52 07/03/2007 08/01/2017
5 Bismarck ND 58503 $52 07/03/2007 08/01/2017
5 Chicago IL 60612 $52 07/03/2007 08/01/2017
5 Hurricane WV 25526 $52 07/03/2007 08/01/2017
5 Tucson AZ 85719 $52 07/03/2007 08/01/2017
6 Los Angeles CA 90023 $72,452 06/08/2007 06/08/2012
8 Milford CT 06460 $199 10/09/2007 11/08/2017
11 Solana Beach CA 92075 $322 07/12/2007 08/01/2017
13 Chicago IL 60610 $172,093 07/12/2007 08/08/2012
15 Torrance CA 90503 $171 07/31/2007 08/08/2017
16 Independence MO 64057 $166 06/15/2007 07/01/2017
18 Boise ID 83702 $146 05/18/2007 06/01/2017
20 Pittsburgh PA 15213 $39,823 07/20/2007 08/08/2017
24 Studio City CA 91604 $175,397 06/29/2007 07/01/2017
25 Sparrows Point MD 21219 $30 08/17/2007 09/08/2012
25 Burlington NJ 08016 $30 08/17/2007 09/08/2012
25 Louisville KY 40258 $30 08/17/2007 09/08/2012
26 Bloomington IN 47401 $80,948 08/10/2007 09/08/2017
27 Culver City CA 90232 $199 07/06/2007 08/01/2012
28 Phoenix - Mesa AZ 85040 $136 07/26/2007 08/08/2017
29 Phoenix - Mesa AZ 85040 $171 07/26/2007 08/08/2017
30 London KY 40741 $31 09/14/2007 10/08/2017
30 Danville KY 40422 $31 09/14/2007 10/08/2017
30 Paintsville KY 41256 $31 09/14/2007 10/08/2017
30 Ashland KY 41102 $31 09/14/2007 10/08/2017
30 Winchester KY 40391 $31 09/14/2007 10/08/2017
30 Mt. Sterling KY 40353 $31 09/14/2007 10/08/2017
30 Lawrenceburg KY 40342 $31 09/14/2007 10/08/2017
30 Wheelersburg OH 45694 $31 09/14/2007 10/08/2017
30 Morehead KY 40351 $31 09/14/2007 10/08/2017
30 Winchester KY 40391 $31 09/14/2007 10/08/2017
30 Berea KY 40403 $31 09/14/2007 10/08/2017
30 Hager Hill/Paintsville KY 41222 $31 09/14/2007 10/08/2017
30 Willard OH 44890 $31 09/14/2007 10/08/2017
30 Willard OH 44890 $31 09/14/2007 10/08/2017
30 Morehead KY 40351 $31 09/14/2007 10/08/2017
30 Wheelersburg OH 45694 $31 09/14/2007 10/08/2017
30 Salyersville KY 41465 $31 09/14/2007 10/08/2017
30 Greenwich OH 44837 $31 09/14/2007 10/08/2017
30 West Liberty KY 41472 $31 09/14/2007 10/08/2017
30 West Liberty KY 41472 $31 09/14/2007 10/08/2017
30 Whitesburg KY 41858 $31 09/14/2007 10/08/2017
30 Willard OH 44890 $31 09/14/2007 10/08/2017
32 New York NY 10003 $3,553 04/18/2007 05/01/2017
33 Elizabeth NJ 07201 $50 11/14/2006 12/01/2017
35 Denver CO 80123 $101 08/22/2007 09/08/2017
36 West Lafayette IN 47906 $33,184 03/15/2007 04/01/2017
37 Ukiah CA 95482 $47 02/27/2007 03/01/2017
37 Taft CA 93268 $47 02/27/2007 03/01/2017
37 Riverside CA 92508 $47 02/27/2007 03/01/2017
38 Riverside CA 92505 $217 07/31/2007 08/01/2017
39 Fort Worth TX 76177 $41 07/19/2007 08/07/2017
48 West Lafayette IN 47906 $84,743 07/16/2007 08/08/2017
48 Bloomington IN 47408 $84,743 07/16/2007 08/08/2017
50 Washington DC 20005 $214 05/11/2007 06/01/2017
52 South Orange NJ 07079 $153,333 05/30/2007 06/07/2012
55 Salt Lake City UT 84106 $144 04/07/2006 05/01/2017
57 Bettendorf IA 52722 $54,144 06/29/2007 07/01/2017
61 Las Vegas NV 89119 $128 07/27/2007 08/08/2017
62 Boca Raton FL 33487 $207 07/31/2007 08/08/2017
64 North Fayette Township PA 15275 $220 04/25/2007 05/01/2017
67 Ft. Myers Beach FL 33931 $72,715 07/02/2007 08/01/2017
69 Columbus OH 43017 $178 07/02/2007 08/01/2017
70 Ardmore PA 19003 $84,800 06/12/2007 07/01/2017
71 Washington DC 20004 $203 05/11/2007 06/01/2017
72 Pensacola FL 32534 $179 07/13/2007 08/08/2012
72 Snellville GA 30017 $179 07/13/2007 08/08/2012
72 Spanish Fort AL 36527 $179 07/13/2007 08/08/2012
74 Everett WA 98201 $259 06/11/2007 07/01/2017
78 Bolingbrook IL 60440 $188 05/23/2007 06/01/2017
79 Springfield MO 65807 $45 07/05/2007 08/01/2017
80 Westlake OH 44145 $85 09/19/2007 10/08/2017
81 Independence OH 44131 $85 09/19/2007 10/08/2017
82 Montgomery OH 45242 $189 02/28/2007 03/01/2017
83 Paterson NJ 07514 $64 10/11/2007 11/08/2017
89 New York NY 10025 $194,286 08/20/2007 09/08/2017
90 Los Angeles CA 91604 $412 06/01/2007 07/01/2017
92 Castle Rock CO 80104 $52 08/31/2007 09/08/2017
94 Dahlonega GA 30533 $64,324 08/01/2007 08/08/2017
94 Dahlonega GA 30533 $64,324 08/01/2007 08/08/2017
94 Dahlonega GA 30533 $64,324 08/01/2007 08/08/2017
94 Dahlonega GA 30533 $64,324 08/01/2007 08/08/2017
94 Dahlonega GA 30533 $64,324 08/01/2007 08/08/2017
95 West Warwick RI 02893 $303 08/31/2007 09/08/2017
97 Monroe LA 71203 $23,404 08/07/2007 09/08/2017
99 Seffner FL 33584 $77,060 07/24/2007 08/08/2017
100 Canandaigua NY 14424 $393 07/31/2007 08/08/2017
102 Lawrence KS 66044 $101 05/16/2007 06/01/2017
103 Brooklyn NY 11223 $705 06/27/2007 07/01/2012
107 Thousand Oaks CA 91361 $195 07/17/2007 08/01/2017
108 Indianapolis IN 46217 $66,875 08/31/2007 07/01/2015
112 Oceanside CA 92054 $181 05/17/2007 06/01/2017
113 Westbrook ME 04092 $175 08/07/2007 08/08/2017
115 Monroe NJ 08831 $21 12/27/2006 01/01/2018
117 Clermont FL 34711 $114 06/12/2007 07/01/2012
119 San Antonio TX 78248 $132 05/22/2007 06/01/2017
120 Merrimack NH 03054 $60 06/29/2007 07/01/2017
121 Glendale AZ 85303 $293 12/28/2006 01/01/2018
122 Coolidge AZ 85228 $173 08/27/2007 09/08/2017
123 Portland OR 97232 $193 10/19/2007 06/01/2017
124 Tulsa OK 74137 $163 06/21/2007 07/01/2017
125 San Antonio TX 78240 $108 08/24/2007 09/08/2017
126 Cleveland OH 44109 $114 06/06/2007 07/01/2017
128 Monroeville PA 15146 $284 05/17/2007 06/08/2017
129 Richmond VA 23225 $352 07/17/2007 08/01/2017
130 Bountiful UT 84010 $115 06/20/2006 07/09/2016
131 Gainesville VA 20155 $363 05/31/2007 06/01/2017
132 Houston TX 77007 $254 06/28/2007 07/01/2017
134 Coconut Creek FL 33073 $253 02/02/2007 03/01/2017
137 Bel Air MD 21014 $150 07/26/2007 08/08/2017
139 Jacksonville FL 32216 $104 05/17/2007 06/01/2017
140 Lakeland FL 33815 $16,667 04/02/2007 05/01/2017
143 Clarksville TN 37042 $135 06/14/2007 07/01/2017
145 Shelbyville IN 46176 $256 06/06/2007 07/01/2017
150 Canton GA 30114 $190 08/01/2007 09/01/2017
153 Jamaica NY 11435 $512 08/03/2007 08/08/2017
155 Morgantown WV 26505 $51,337 07/25/2007 08/01/2017
156 Newberry SC 29108 $122 05/31/2007 06/01/2017
159 Lakeport CA 95453 $50,000 06/15/2007 07/01/2012
160 Oakland NJ 07436 $83 08/22/2007 09/08/2017
162 New Brunswick NJ 08901 $278,147 08/03/2007 08/08/2017
163 Berkeley Springs WV 25411 $58 08/08/2007 09/01/2017
165 Wooster OH 44691 $295 07/25/2007 08/08/2017
167 Astoria NY 11103 $228,571 07/19/2007 08/08/2017
168 Pittsburgh PA 15239 $38,095 05/30/2007 06/01/2017
169 Katy TX 77493 $89 06/29/2007 07/01/2017
170 Bolingbrook IL 60440 $58 06/13/2007 07/01/2017
172 Sacramento CA 95825 $189 06/08/2007 07/01/2017
173 Houston TX 77014 $62 08/30/2007 09/08/2017
174 Bradley IL 60915 $196 07/30/2007 08/08/2017
177 Mills River NC 28742 $79 07/20/2007 08/01/2017
179 Florida City FL 33034 $171 06/15/2007 07/01/2017
180 Brooklyn NY 11213 $90 07/11/2007 08/08/2017
183 Odessa TX 79762 $109 07/26/2007 08/01/2017
184 Westhampton Beach NY 11978 $241 10/10/2007 11/08/2017
185 Nashville TN 37204 $142 06/14/2007 07/01/2017
186 Oakland NJ 07436 $57 06/29/2007 07/01/2017
189 Arlington TX 76018 $78 05/08/2007 06/01/2017
189 Irving TX 75063 $78 05/08/2007 06/01/2017
191 Nashville TN 37221 $210 06/14/2007 07/01/2017
192 Richmond VA 23228 $87 07/27/2007 08/08/2017
194 Boise ID 83709 $68 07/09/2007 08/01/2017
202 Otay Mesa CA 92154 $7 08/07/2007 08/08/2017
203 Augusta GA 30909 $222 07/05/2007 08/01/2017
206 Orlando FL 32803 $75 06/07/2007 07/01/2017
207 Lacey NJ 08734 $264 06/14/2007 07/01/2017
210 Prince Frederick MD 20678 $56 07/25/2007 08/08/2017
211 St. Charles IL 60174 $240 07/27/2007 08/08/2017
212 Nashville TN 37218 $129 06/14/2007 07/01/2017
213 Sherwood OR 97140 $321 06/06/2007 07/01/2017
214 Windsor CT 06095 $79 06/26/2007 07/01/2017
216 Hendersonville TN 37075 $192 06/14/2007 07/01/2017
221 Nantucket MA 07643 $684 06/29/2007 07/01/2017
223 Rochester NY 14623 $115 08/02/2007 08/08/2017
231 Scottsdale AZ 85260 $226 08/24/2007 09/08/2017
Totals and
Weighted Averages:
Mortgage Loan No. ARD Loan Original Term to Maturity Remaining Term to Maturity Original Amort. Term(9) Mortgage Rate
----------------- -------- ------------------------- -------------------------- ----------------------- -------------
3 No 120 117 IO 6.115%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
5 No 120 117 IO 6.383%
6 No 60 55 IO 6.050%
8 No 121 120 360 6.030%
11 No 120 117 360 6.388%
13 No 60 57 IO 6.510%
15 No 120 117 360 6.180%
16 No 120 116 360 5.690%
18 No 120 115 360 5.600%
20 No 120 117 360 6.140%
24 No 120 116 IO 5.580%
25 No 60 58 360 6.270%
25 No 60 58 360 6.270%
25 No 60 58 360 6.270%
26 No 120 118 360 6.270%
27 No 60 57 IO 6.480%
28 No 120 117 360 6.480%
29 No 120 117 360 6.580%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
30 No 120 119 360 6.170%
32 Yes 120 114 360 5.705%
33 No 132 121 IO 5.850%
35 No 120 118 360 6.235%
36 No 120 113 360 5.800%
37 Yes 120 112 360 6.100%
37 Yes 120 112 360 6.100%
37 Yes 120 112 360 6.100%
38 No 120 117 360 6.140%
39 No 120 117 360 5.680%
48 No 120 117 360 5.910%
48 No 120 117 360 5.910%
50 No 120 115 360 5.540%
52 No 60 55 IO 5.700%
55 No 132 114 360 6.090%
57 No 120 116 360 5.720%
61 No 120 117 IO 6.240%
62 No 120 117 360 6.110%
64 No 120 114 360 5.730%
67 No 120 117 360 5.850%
69 No 120 117 360 6.240%
70 No 120 116 360 5.940%
71 No 120 115 360 5.540%
72 No 60 57 360 6.550%
72 No 60 57 360 6.550%
72 No 60 57 360 6.550%
74 No 120 116 360 5.640%
78 No 120 115 360 5.610%
79 No 120 117 120 6.100%
80 No 120 119 336 6.530%
81 No 120 119 336 6.530%
82 No 120 112 360 5.650%
83 No 120 120 360 6.590%
89 No 120 118 IO 6.520%
90 No 120 116 IO 5.950%
92 No 120 118 324 6.540%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
94 No 120 117 360 6.020%
95 No 120 118 360 6.190%
97 No 120 118 300 6.600%
99 No 120 117 300 6.690%
100 No 120 117 360 6.210%
102 No 120 115 360 5.800%
103 No 60 56 360 6.170%
107 No 120 117 360 6.290%
108 No 94 92 360 6.260%
112 No 120 115 360 5.680%
113 No 120 117 300 6.250%
115 No 132 122 IO 5.690%
117 No 60 56 360 6.420%
119 No 120 115 360 5.700%
120 No 120 116 360 6.300%
121 No 132 122 360 5.960%
122 No 120 118 324 6.400%
123 No 115 115 360 5.780%
124 No 120 116 360 6.270%
125 No 120 118 360 6.200%
126 No 120 116 360 5.850%
128 No 120 115 360 5.710%
129 No 120 117 360 5.690%
130 No 120 104 360 6.230%
131 No 120 115 360 5.760%
132 No 120 116 360 5.670%
134 No 120 112 360 5.950%
137 No 120 117 360 6.370%
139 No 120 115 360 5.760%
140 No 120 114 360 5.530%
143 No 120 116 360 6.300%
145 No 120 116 IO 5.790%
150 No 120 118 360 6.220%
153 No 120 117 360 6.380%
155 No 120 117 360 6.100%
156 No 120 115 360 5.770%
159 No 60 56 IO 5.850%
160 No 120 118 360 6.340%
162 No 120 117 300 6.520%
163 No 120 118 360 6.430%
165 No 120 117 360 6.160%
167 No 120 117 360 6.290%
168 No 120 115 360 5.900%
169 No 120 116 360 6.210%
170 No 120 116 360 5.900%
172 No 120 116 360 6.180%
173 No 120 118 360 6.630%
174 No 120 117 360 6.490%
177 No 120 117 360 6.130%
179 No 120 116 360 6.380%
180 No 120 117 300 6.330%
183 No 120 117 360 6.400%
184 No 120 120 360 6.840%
185 No 120 116 360 6.300%
186 No 120 116 360 5.790%
189 No 120 115 360 5.680%
189 No 120 115 360 5.680%
191 No 120 116 360 6.300%
192 No 120 117 360 6.290%
194 No 120 117 360 6.260%
202 No 120 117 360 6.130%
203 No 120 117 IO 5.700%
206 No 120 116 360 5.850%
207 No 120 116 360 6.280%
210 No 120 117 240 6.250%
211 No 120 117 360 5.780%
212 No 120 116 360 6.300%
213 No 120 116 360 5.660%
214 No 120 116 360 5.950%
216 No 120 116 360 6.300%
221 No 120 116 360 6.350%
223 No 120 117 360 6.030%
231 No 120 118 360 6.160%
Totals and
Weighted Averages: 116 113 354 6.163%
SCHEDULE II
GECC LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Balance(3) Street Address
-------------------------------------------------------------------------------------------------------------------------------
1 GECC West Town Mall $210,000,000 7600 Kingston Pike
2 GECC 60 Wall Street $125,000,000 60 Wall Street
7 GECC Bangor Mall $80,000,000 663 Stillwater Avenue
12 GECC Crowne Plaza- Addison $37,000,000 14315 Midway Road
17 GECC The Links at Cadron Valley $29,925,000 3400 Irby Drive
19 GECC Hilltown Plaza $26,038,000 Business Routes 309 & 113
21 GECC Century XXI $25,300,000 20010, 20020, & 20030 Century Boulevard
31 GECC Frost Bank -Corpus Christi $19,500,000 802 North Carancahua
42 GECC Whispering Palms $12,700,000 10305 US Highway 1
43 GECC Cowan Colorado Portfolio - Hickory Village (V) $4,037,225 400 Hickory Street
43 GECC Cowan Colorado Portfolio - Eastwood Village (V) $3,414,569 200 37th Street
43 GECC Cowan Colorado Portfolio - Parco (V) $2,791,912 400 W. South Boulder Road
43 GECC Cowan Colorado Portfolio - Green Acres (V) $2,256,294 2935 11th Avenue
45 GECC Oak Park Terrace $12,050,000 3901 Packers Avenue
46 GECC Las Palmas de la Quinta MHC $12,000,000 80000 Avenue 46
47 GECC Collegiate Commons $11,800,000 1407 Cunningham Street
53 GECC Rampart Village Center $10,108,000 7601-7691 North Union Boulevard
66 GECC West Road Corporate Center $8,885,772 110 West Road
84 GECC Donovan Way $7,483,000 4610 Donovan Way
85 GECC Lago Vista MHC $7,200,000 420 East 57th Street
104 GECC 777 East Macarthur Circle $5,595,983 777 East Macarthur Circle
106 GECC 652 Hempstead Turnpike $5,400,000 652 Hempstead Turnpike
110 GECC Lowe's Macedon $5,265,000 Route 31 & Macedon Parkway
111 GECC Enterprise Hoffner Avenue $5,231,935 5442 Hoffner Avenue
114 GECC Promenade at Carolina Pavillion $5,100,000 10822 Providence Road
118 GECC Copper Creek $4,936,000 5195 Copper Creek Loop NE
136 GECC Rossmore Industrial $4,108,000 1973 East Via Arado
138 GECC Val Vista Winter Village RV Resort $4,015,000 16680 Val Vista Road
142 GECC Victory Village MHC $3,950,000 260 Victory Highway
144 GECC Shoppes at Parish Place $3,800,000 203 North Anderson Lane
146 GECC Market District Center $3,776,000 1100 Brampton Avenue
161 GECC Papermill Storage $3,360,000 3980 Papermill Road
164 GECC Covington Square $3,300,000 1603 Highway 51 S
171 GECC Sugar Mill MHC $3,100,000 3130 Sugar Mill Lane
175 GECC Halcyon Village MHC $3,000,000 38129 Weirich Drive
176 GECC Cromwell Bridge Road $2,997,896 1001 Cromwell Bridge Road
182 GECC Hillside MHC $2,635,000 123 South McMullen Booth Road
187 GECC Enchanted Lakes MHC and RV Resort $2,493,794 750 Malabar Road
197 GECC Royal Coach Village MHP $2,196,557 700 West Greens Road
198 GECC Shoppes at Vista Lakes $2,175,000 8734 Lee Vista Boulevard
201 GECC Walgreens - Swansboro, NC $2,080,000 702 West Corbett Avenue
204 GECC Oak Estates MHC $2,000,000 9874 Golf Club Road SE
Totals and Weighted Averages: $728,005,936
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------- -----------------------------------------------------------------------------------
1 Knoxville TN 37919 10/31/2007 12/01/2017 No
2 New York NY 10005 06/06/2007 07/01/2017 No
7 Bangor ME 04401 09/10/2007 10/01/2017 No
12 Addison TX 75001 08/10/2007 09/01/2017 No
17 Conway AR 72034 08/27/2007 09/01/2017 No
19 Hilltown Township PA 18964 07/27/2007 08/01/2017 No
21 Germantown MD 20874 10/10/2007 11/01/2017 No
31 Corpus Christi TX 78740 07/26/2007 08/01/2017 No
42 Sebastian FL 32958 07/18/2007 08/01/2014 No
43 Fort Collins CO 80524 06/29/2007 07/01/2017 No
43 Evans CO 80620 06/29/2007 07/01/2017 No
43 Louisville CO 80027 06/29/2007 07/01/2017 No
43 Evans CO 80620 06/29/2007 07/01/2017 No
45 Madison WI 53704 07/18/2007 08/01/2017 No
46 Indio CA 92201 08/01/2007 09/01/2014 No
47 Greensboro NC 27401 05/29/2007 06/01/2017 No
53 Colorado Springs CO 80920 08/30/2007 09/01/2017 No
66 Towson MD 21204 08/15/2007 09/01/2017 No
84 North Las Vegas NV 89031 10/29/2007 11/01/2017 No
85 Loveland CO 80538 06/29/2007 07/01/2017 No
104 Tuscon AZ 85714 09/28/2007 10/01/2017 No
106 Franklin Square NY 11010 09/27/2007 10/01/2017 No
110 Macedon NY 14502 09/25/2007 10/01/2017 No
111 Orlando FL 32822 06/21/2007 07/01/2017 No
114 Charlotte NC 28273 10/31/2007 11/01/2017 No
118 Salem OR 97305 06/29/2007 07/01/2012 No
136 Rancho Dominguez CA 90220 06/05/2007 07/01/2017 No
138 Casa Grande AZ 85222 08/15/2007 09/01/2017 No
142 Painted Post NY 14870 10/01/2007 11/01/2017 No
144 Hendersonville TN 37075 09/28/2007 10/01/2017 No
146 Statesboro GA 30458 08/30/2007 09/01/2017 No
161 Knoxville TN 37909 06/19/2007 07/01/2017 No
164 Covington TN 38019 07/19/2007 08/01/2017 No
171 Saint Cloud FL 34769 10/17/2007 11/01/2017 No
175 Lebanon OR 97355 10/31/2007 11/01/2017 No
176 Towson MD 21286 09/26/2007 10/01/2017 No
182 Clearwater FL 33759 08/02/2007 09/01/2012 No
187 Malabar FL 32950 07/19/2007 08/01/2014 No
197 Houston TX 77067 08/06/2007 09/01/2017 No
198 Orlando FL 32829 10/05/2007 11/01/2017 No
201 Swansboro NC 28584 09/10/2007 10/01/2017 No
204 Stayton OR 97383 06/29/2007 07/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
-----------------------------------------------------------------------------
1 121 121 IO 6.338%
2 120 116 IO 5.771%
7 120 119 IO 6.147%
12 120 118 360 6.390%
17 120 118 360 6.030%
19 120 117 IO 6.270%
21 120 120 IO 6.320%
31 120 117 IO 6.360%
42 84 81 360 6.220%
43 120 116 360 5.960%
43 120 116 360 5.960%
43 120 116 360 5.960%
43 120 116 360 5.960%
45 120 117 IO 6.390%
46 84 82 420 6.330%
47 120 115 IO 5.630%
53 120 118 360 6.630%
66 120 118 360 6.590%
84 120 120 360 6.170%
85 120 116 IO 6.160%
104 120 119 360 6.530%
106 120 119 IO 6.680%
110 120 119 IO 5.890%
111 120 116 360 6.080%
114 120 120 IO 6.700%
118 60 56 IO 6.380%
136 120 116 IO 6.360%
138 120 118 360 6.520%
142 120 120 360 6.510%
144 120 119 360 6.470%
146 120 118 360 6.370%
161 120 116 360 6.430%
164 120 117 360 6.200%
171 120 120 IO 6.320%
175 120 120 360 6.350%
176 120 119 360 6.610%
182 60 58 360 6.570%
187 84 81 360 6.300%
197 120 118 360 6.680%
198 120 120 360 6.480%
201 120 119 IO 6.300%
204 120 116 360 6.580%
115 112 360 6.37%
SCHEDULE III
PCFII LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
4 PCF II Hilton Daytona Beach $94,730,000 100 North Atlantic Avenue
9 PCF II Marriott Columbia $41,300,000 1200 Hampton Street
14 PCF II Hilton Antlers Colorado Springs $36,432,000 4 South Cascade Avenue
34 PCF II Summit Professional Plaza $15,925,000 1111 Glynco Parkway
49 PCF II 45 Gilpin Avenue $11,000,000 45 Gilpin Avenue
51 PCF II Paloma Village Center $10,500,000 6330, 6360 & 6370 North Campbell Avenue
56 PCF II 675 Almanor Avenue $9,992,806 675 Almanor Avenue
68 PCF II Wellington Corporate Center $8,600,000 1200, 1300 & 1500 Corporate Center Way
105 PCF II 3075 Raymond Street $5,500,000 3075 Raymond Street
148 PCF II San Diego Spectrum $3,700,000 4933 Paramount Drive
149 PCF II 9701 Bell Ranch Drive $3,697,029 9701 Bell Ranch Drive
154 PCF II 711 Distribution Drive $3,495,850 711 Distribution Drive
157 PCF II Hertz Equipment Rental Facility $3,400,000 625 South Route 83
158 PCF II Mill Pond Shoppes $3,400,000 421 Robert Parker Coffin Road
181 PCF II 510 Paladin Drive $2,648,094 510 Paladin Drive
224 PCF II Center Street Village $1,372,766 620, 626 & 632 East Center Street
226 PCF II Meriwether Retail $1,300,000 3601 Southwest River Parkway, C-1 & C-2
Totals and Weighted Averages: $256,993,544
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------- -----------------------------------------------------------------------------------
4 Daytona Beach FL 32118 10/05/2007 11/01/2017 No
9 Columbia SC 29201 10/05/2007 11/01/2017 No
14 Colorado Springs CO 80903 10/05/2007 11/01/2017 No
34 Brunswick GA 31525 08/30/2007 09/01/2017 No
49 Hauppauge NY 11788 09/13/2007 10/01/2017 No
51 Tucson AZ 85718 08/23/2007 09/01/2017 No
56 Sunnyvale CA 94085 09/04/2007 10/01/2017 No
68 Wellington FL 33414 09/27/2007 10/01/2017 No
105 Santa Clara CA 95054 08/31/2007 09/01/2017 No
148 San Diego CA 92123 09/19/2007 10/01/2017 No
149 Santa Fe Springs CA 90670 09/24/2007 10/01/2017 No
154 Columbus OH 43228 09/18/2007 10/01/2017 No
157 Villa Park IL 60181 08/29/2007 09/01/2017 Yes
158 Long Grove IL 60047 07/31/2007 08/01/2017 No
181 Greenville NC 27834 09/06/2007 10/01/2017 No
224 Rochester MN 55904 08/31/2007 09/01/2017 No
226 Portland OR 97239 09/14/2007 10/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
------------- ----------------------------------------------------------
4 120 120 360 6.510%
9 120 120 360 6.510%
14 120 120 360 6.510%
34 120 118 IO 6.180%
49 120 119 IO 6.340%
51 120 118 IO 6.300%
56 120 119 360 6.520%
68 120 119 360 6.320%
105 120 118 360 6.250%
148 120 119 IO 6.790%
149 120 119 360 6.120%
154 120 119 300 6.370%
157 120 118 360 6.070%
158 120 117 360 6.340%
181 120 119 360 6.520%
224 120 118 360 6.520%
226 120 119 360 6.350%
120 119 360 6.384%
SCHEDULE IV
RBC LOAN SCHEDULE
Mortgage Mortgage Cut-off
Loan No. Loan Seller(1) Property Name(2) Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
10 RBC Ashtabula Mall $40,300,000 3315 North Ridge Road East
22 RBC Deer Creek Marketplace $24,004,000 6800-6882 & 7040-7052
W. 135th Avenue
40 RBC Prospect Square $12,900,000 9654-9720 Colerain Avenue
44 RBC Danbrook Realty Portfolio - Mallory Brook Plaza (VI) $7,100,000 380 New Hartford Road
44 RBC Danbrook Realty Portfolio - Lincoln Plaza (VI) $5,022,000 311 West Main Street
58 RBC Healthsouth Rehabilitation Center (Fredericksburg, VA) $9,900,000 300 Park Hill Dr.
65 RBC Hudson New Windsor $9,060,000 575 Hudson Valley Avenue
73 RBC Hilton Garden Inn (Kenner, LA) $8,272,000 4535 Williams Blvd
76 RBC Hudson Slingerlands Crossing II $8,080,000 1220 New Scotland Road
86 RBC Hudson Benedictine Cancer Center $7,076,100 111 Marys Avenue
88 RBC Hudson Slingerlands Crossing I $6,940,000 1240 New Scotland Road
91 RBC Holiday Inn Round Rock $6,750,000 2340 N. IH 35
93 RBC Cedar Creek Apartments $6,450,000 4233 Cedar Creek Circle
96 RBC Hudson New Paltz Medical Center $6,128,000 279 Main Street
135 RBC Evanston Enterprise Center (1840 Oak St, Evanston, IL) $4,150,000 1840 Oak Avenue
152 RBC Hudson Plank Medical Center $3,596,000 648 Plank Road
Totals and Weighted Averages: $165,728,100
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------------------------------------------------------------------------------------------------------
10 Ashtabula OH 44004 08/24/2007 09/01/2017 No
22 Overland Park KS 66223 08/22/2007 09/01/2017 No
40 Cincinnati OH 45251 10/10/2007 11/01/2017 No
44 Barkhamsted CT 06063 09/24/2007 10/01/2017 No
44 Meriden CT 06451 09/24/2007 10/01/2017 No
58 Fredericksburg VA 22401 10/05/2007 11/01/2017 No
65 New Windsor NY 12553 08/24/2007 09/01/2017 No
73 Kenner LA 70065 09/20/2007 10/01/2017 No
76 Bethlehem NY 12159 08/24/2007 09/01/2017 No
86 Kingston NY 12401 08/24/2007 09/01/2017 No
88 Bethlehem NY 12159 08/24/2007 09/01/2017 No
91 Round Rock TX 78681 10/09/2007 11/01/2017 No
93 Montgomery AL 36106 07/03/2007 07/01/2017 No
96 New Paltz NY 12561 08/24/2007 09/01/2017 No
135 Evanston IL 60201 10/17/2007 11/01/2017 No
152 Clifton Park NY 12065 08/24/2007 09/01/2017 No
Mortgage Original Term Remaining Term Original Amort. Mortgage
Loan No. to Maturity to Maturity Term(9) Rate
---------------------------------------------------------------------------
10 120 118 360 6.400%
22 120 118 IO 5.480%
40 120 120 360 6.020%
44 120 119 360 6.870%
44 120 119 360 6.870%
58 120 120 360 6.500%
65 120 118 360 6.300%
73 120 119 360 7.020%
76 120 118 360 6.300%
86 120 118 360 6.300%
88 120 118 360 6.300%
91 120 120 360 6.510%
93 120 116 360 6.210%
96 120 118 360 6.300%
135 120 120 360 6.590%
152 120 118 360 6.300%
120 119 360 6.392%
SCHEDULE V
NATCITY LOAN SCHEDULE
Mortgage Mortgage Property Cut-Off
Loan No. Loan Seller Name Date Balance Street Address City State Zip Code
------------------------------------------------------------------------------------------------------------------------------
59 NatCity IDG Columbus $3,929,824 4038 Morse Rd. Columbus OH 43219
59 NatCity IDG Reynoldburg $2,077,193 2312 Taylor Park Dr. Reynoldsburg OH 43068
59 NatCity IDG Polaris $1,908,772 1141 Polaris Parkway Columbus OH 43240
59 NatCity IDG Dublin $1,684,210 3755 W. Dublin-Granville Rd. Dublin OH 43017
60 NatCity Hunters Square Office $9,576,284 8600 - 8740 E. Market St. Warren OH 44484
98 NatCity Richmond Hills $6,050,000 25450 - 25454 Euclid Ave. Euclid OH 44117
133 NatCity Thieneman MHP $4,300,000 2801 Autumn Lake Dr. Louisville KY 40272
196 NatCity Riviera Apartments $2,198,422 2323 - 2329 Shoreland Ave. Toledo OH 43611
Original Remaining Original
Mortgage Term to Term to Amort. Mortgage
Loan No. Note Date Maturity Date ARD Loan Maturity Maturity Term Rate
---------------------------------------------------------------------------------------------
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
59 08/14/2007 09/01/2017 No 120 118 360 6.511%
60 07/30/2007 08/01/2017 No 120 117 360 6.320%
98 07/31/2007 08/01/2012 No 60 57 360 6.607%
133 10/19/2007 11/01/2017 No 120 120 276 6.498%
196 09/20/2007 10/01/2017 No 120 119 360 6.531%
SCHEDULE VI-1
NCB, FSB LOAN SCHEDULE
Mortgage Mortgage Loan Cut-Off Date
Loan No. Seller(1) Property Name(2) Balance(3)
----------------------------------------------------------------------------------------------------------
63 NCB, FSB Lumberton Town Center $9,483,907
75 NCB, FSB Fresenius Medical Care Portfolio - Mobile (X) $1,343,000
75 NCB, FSB Fresenius Medical Care Portfolio - Jackson (X) $1,283,000
75 NCB, FSB Fresenius Medical Care Portfolio - Whetstone (X) $1,283,000
75 NCB, FSB Fresenius Medical Care Portfolio - Thomasville (X) $1,250,000
75 NCB, FSB Fresenius Medical Care Portfolio - Pendleton (X) $1,163,000
75 NCB, FSB Fresenius Medical Care Portfolio - Auburn (X) $973,000
75 NCB, FSB Fresenius Medical Care Portfolio - Alexander City (X) $835,000
101 NCB, FSB The Exchange Building 100 $5,700,000
127 NCB, FSB Johnstone Portfolio - Johnstone Supply #263 (XII) $2,400,359
127 NCB, FSB Johnstone Portfolio - Johnstone Supply #295 (XII) $1,012,651
127 NCB, FSB Johnstone Portfolio - Johnstone Supply #124 (XII) $997,649
127 NCB, FSB Johnstone Portfolio - Johnstone Supply #317 (XII) $320,673
141 NCB, FSB Ramada Inn - Baltimore $3,995,092
151 NCB, FSB Fidelity Engineering Corp. $3,600,000
166 NCB, FSB Beco Corporate Center $3,280,000
178 NCB, FSB Anderson Shops $2,972,560
188 NCB, FSB Imperial Square Shopping Center $2,490,447
190 NCB, FSB Laurel Office Park Building $2,400,000
193 NCB, FSB 1613 Blue Hill Ave. $2,294,221
195 NCB, FSB Nopper Building $2,216,500
199 NCB, FSB Dunwoody Club Center $2,160,000
200 NCB, FSB Safeway Plaza $2,145,763
205 NCB, FSB Clarkston Village $1,997,467
208 NCB, FSB Time Warner $1,938,870
209 NCB, FSB Camden Corners $1,938,678
215 NCB, FSB Family Dollar Portfolio - Skibo Crossing (XIV) $985,625
215 NCB, FSB Family Dollar Portfolio - Northleigh Family Dollar (XIV) $752,659
217 NCB, FSB 5010 Medical Care Court LLC $1,690,799
218 NCB, FSB Seven Lakes Shopping Center $1,680,000
219 NCB, FSB Shaw's Supermarket $1,500,000
220 NCB, FSB Brooklyn Federal Savings Bank $1,475,000
222 NCB, FSB Brooks Holding Corp. $1,398,878
225 NCB, FSB Carthage Plaza $1,350,000
227 NCB, FSB 19 Walker Avenue $1,296,889
228 NCB, FSB E Ponce de Leon Retail, LLC $1,290,519
229 NCB, FSB Shoppes of Lucedale $1,176,400
230 NCB, FSB Duluth Auto Center $1,120,000
232 NCB, FSB Canal Studio Corp. $500,000
233 NCB, FSB 283 6th Ave. Corporation $239,935
234 NCB, FSB 51 Seventh Housing Corp. $179,699
----------------------------------------------------------------------------------------------------------
Totals and Weighted Averages: $78,111,239
----------------------------------------------------------------------------------------------------------
Mortgage
Loan No. Street Address City State Zip Code
------------------------------------------------------------------------------------------------------------------
63 5021 Fayetteville Road Lumberton NC 28358
75 2620 Old Shell Road Mobile AL 36607
75 215 Walker Springs Road Jackson AL 36545
75 676 South Alabama Avenue Monroeville AL 36460
75 30230 Highway 43 Thomasville AL 36784
75 928 South Mechanic Street Pendleton SC 29670
75 211 East University Drive Auburn AL 36932
75 52 Waterworks Road Dadeville AL 36853
101 2470 Daniell's Bridge Road, Building 100 Athens GA 30606
127 3650 Junction Boulevard Raleigh NC 27603
127 2781 Hope Church road Winston-Salem NC 27127
127 2905 Industrial Drive Raleigh NC 27609
127 3061 North Church Street Rocky Mount NC 27804
141 6422 Baltimore National Pike Baltimore MD 21228
151 25 Loveton Circle Sparks MD 21152
166 609 Independence Parkway Chesapeake VA 23320
178 3300, 3308, 3319 North Main Street Anderson SC 29621
188 1444 S. Belcher Road Clearwater FL 33764
190 2425 Boulevard Colonial Heights VA 23834
193 1613 Blue Hill Avenue Mattapan MA 02126
195 900, 910, 920 Technology Blvd. Bozeman MT 59718
199 2494-2498 Jett Ferry Road Atlanta GA 30338
200 2863 Peachtree Industrial Blvd. Duluth GA 30097
205 916-926 Montreal Road Clarkston GA 30021
208 2620 West Henrietta Road Rochester NY 14623
209 1351 Boone Avenue Kingsland GA 31548
215 6021 Raeford Road Fayetteville NC 28304
215 2800 Ramsey Street Fayetteville NC 28301
217 5010 Medical Care Court Belmont NC 28012
218 1075 Seven Lakes Drive West End NC 27376
219 1175 Main Street Clinton MA 01510
220 1174 Jericho Turnpike Commack NY 11725
222 91 East End Avenue New York NY 10028
225 889-899 Highway 16 West Carthage MS 39051
227 19 Walker Avenue Baltimore MD 21208
228 1116 E. Ponce de Leon Avenue Decatur GA 30030
229 11223 Highway 63 South Lucedale MS 39452
230 3883 Peachtree Industrial Blvd. Duluth GA 30096
232 305 Canal Street New York NY 10013
233 283 6th Avenue Brooklyn NY 11215
234 51 Seventh Avenue Brooklyn NY 11217
------------------------------------------------------------------------------------------------------------------
Totals and Weighted Averages:
------------------------------------------------------------------------------------------------------------------
Original Remaining Original
Mortgage Term to Term to Amort. Mortgage
Loan No. Note Date Maturity Date ARD Loan Maturity Maturity Term (9) Rate
-------------------------------------------------------------------------------------------------------------------------------
63 08/30/2007 09/01/2017 No 120 118 360 6.340%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
75 05/09/2007 06/01/2017 No 120 115 360 5.770%
101 06/15/2007 07/01/2017 No 120 116 360 5.790%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
127 07/31/2007 08/01/2017 No 120 117 300 6.120%
141 09/26/2007 10/01/2017 No 120 119 300 6.200%
151 07/03/2007 08/01/2017 No 120 117 360 6.360%
166 08/22/2007 09/01/2017 No 120 118 360 6.050%
178 09/13/2007 10/01/2017 No 120 119 360 6.040%
188 06/29/2007 07/01/2017 No 120 116 360 5.640%
190 06/07/2007 07/01/2017 No 120 116 360 5.910%
193 08/01/2007 08/01/2017 No 120 117 360 6.250%
195 10/04/2007 11/01/2017 No 120 120 360 6.040%
199 08/29/2007 09/01/2017 No 120 118 360 6.150%
200 06/13/2007 07/01/2017 No 120 116 300 6.600%
205 09/14/2007 10/01/2017 No 120 119 300 6.040%
208 04/27/2007 05/01/2017 No 120 114 360 5.740%
209 09/28/2007 10/01/2017 No 120 119 360 6.710%
215 03/08/2007 04/01/2017 No 120 113 360 5.800%
215 03/08/2007 04/01/2017 No 120 113 360 5.800%
217 04/10/2007 05/01/2017 No 120 114 360 5.970%
218 06/13/2007 07/01/2017 No 120 116 360 5.750%
219 06/21/2007 07/01/2017 No 120 116 360 6.310%
220 07/25/2007 08/01/2017 No 120 117 360 6.340%
222 08/28/2007 09/01/2017 No 120 118 480 6.130%
225 02/27/2007 03/01/2017 No 120 112 360 5.830%
227 07/31/2007 08/01/2017 No 120 117 360 6.450%
228 02/28/2007 03/01/2017 No 120 112 360 5.980%
229 01/29/2007 02/01/2017 No 120 111 360 6.020%
230 06/28/2007 07/01/2017 No 120 116 300 5.950%
232 03/15/2007 04/01/2017 No 120 113 IO 6.260%
233 09/05/2007 10/01/2017 No 120 119 480 6.410%
234 07/18/2007 08/01/2017 No 120 117 360 7.800%
-------------------------------------------------------------------------------------------------------------------------------
Totals and Weighted Averages: 120 116 354 6.086%
-------------------------------------------------------------------------------------------------------------------------------
SCHEDULE VI-2
NATIONWIDE LOAN SCHEDULE
Mortgage Mortgage Loan
Loan No. Seller(1) Property Name(2) Cut-Off Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
23 NLIC 312 College Avenue Apartments $23,250,000 312 College Avenue
41 NLIC Stassney Heights Shopping Center $12,700,000 5510 South IH-35
54 NLIC Holiday Inn Hotel & Suites - Huntington $10,000,000 800 Third Avenue
77 NLIC Jurupa Self Sufficiency Center $8,000,000 5961 Mission Boulevard
87 NLIC Silver Drive Warehouse $7,000,000 2561, 2601 and 2697 Silver Drive
109 NLIC Shops at Onion Creek $5,300,000 11215 South IH-35
116 NLIC The Baltic Inn $5,000,000 521 6th Avenue
147 NLIC Virginia Village Shopping Center $3,750,000 1415-1495 South Holly Street
Totals and Weighted Averages: $75,000,000
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------------------------------------------------------------------------------------------------
23 Ithaca NY 14850 10/19/2007 11/01/2017 No
41 Austin TX 78745 08/27/2007 09/01/2017 No
54 Huntington WV 25701 10/15/2007 11/01/2017 No
77 Jurupa CA 92509 09/05/2007 10/01/2017 No
87 Columbus OH 43211 09/04/2007 10/01/2017 No
109 Austin TX 78747 09/21/2007 10/01/2017 No
116 San Diego CA 92101 09/07/2007 10/01/2017 No
147 Denver CO 80222 09/14/2007 10/01/2017 No
Mortgage
Loan No. Original Term to Maturity Remaining Term to Maturity Original Amort. Term(9) Mortgage Rate
------------------------------------------------------------------------------------------------------------------------------------
23 120 120 420 6.540%
41 120 118 360 6.280%
54 120 120 300 6.580%
77 120 119 360 5.940%
87 120 119 360 5.670%
109 120 119 360 6.240%
116 120 119 IO 6.230%
147 120 119 360 6.290%
120 119 360 6.221%
SCHEDULE VII
LIST OF ESCROW ACCOUNTS NOT CURRENTLY ELIGIBLE ACCOUNTS
(Section 8.3(e))
Morgan Stanley Mortgage Capital Holdings LLC
--------------------------------------------
NONE
General Electric Capital Corporation
------------------------------------
NONE
Principal Commercial Funding II, LLC
------------------------------------
NONE
Royal Bank of Canada
--------------------
NONE
National City Bank
------------------
NONE
NCB, FSB
--------
NONE
Nationwide Life Insurance Company
---------------------------------
NONE
SCHEDULE VIII
CERTAIN ESCROW ACCOUNTS FOR WHICH A REPORT
UNDER SECTION 5.1(g) IS REQUIRED
Morgan Stanley Mortgage Capital Holdings LLC:
---------------------------------------------
Wyvernwood Garden Apartments
Northport Industrial Center
Banner Bank Building
Montgomery Gateway
Land - Monroe, NJ I
14200 N. Northsight, Suite 155
USFS Industrial Distribution Portfolio
Copelands Buildings
General Electric Capital Corporation:
-------------------------------------
NONE
Principal Commercial Funding II, LLC:
-------------------------------------
45 Gilpin Ave
Royal Bank of Canada:
---------------------
NONE
National City Bank:
-------------------
NONE
NCB, FSB:
---------
Nopper Building
Fidelity Engineering Corp.
Nationwide Life Insurance Company:
----------------------------------
Holiday Inn Hotel & Suites - Huntington
SCHEDULE IX
LIST OF MORTGAGORS THAT ARE THIRD-PARTY BENEFICIARIES UNDER SECTION 2.3(a)
Morgan Stanley Mortgage Capital Holdings LLC:
---------------------------------------------
Westlake Atrium LLC
Rockside Office Plaza LLC
General Electric Capital Corporation:
-------------------------------------
NONE
Principal Commercial Funding II, LLC:
-------------------------------------
NONE
Royal Bank of Canada:
---------------------
NONE
National City Bank:
-------------------
NONE
NCB, FSB:
---------
NONE
Nationwide Life Insurance Company:
----------------------------------
NONE
SCHEDULE X
[Reserved]
SCHEDULE XI
EARN-OUT RESERVES
Morgan Stanley Mortgage Capital Holdings LLC:
---------------------------------------------
Banner Bank Building
Montgomery Gateway
Centerpoint Medical Office Building
Michaels Plaza - Magnolia Avenue
Bradley Place
Walgreens Plaza
Oceanside Self Storage
Sterling Shores Estates
General Electric Capital Corporation:
-------------------------------------
Bonner Springs
Crowne Plaza - Addison
Hillside MHC
Market District Center
Oak Estates MHC
Oak Park Terrace
Quivira Hill Estates
Victory Village MHC
Whispering Palms - Evergreen
Principal Commercial Funding II, LLC:
-------------------------------------
Wellington Corporate Center
Hilton Dayton Beach Ocean Walk Village
Marriott Columbia
Hilton Antlers Colorado Springs
Royal Bank of Canada:
---------------------
NONE
National City Bank:
-------------------
Richmond Hills
Riviera Apts
NCB, FSB:
---------
Camden Corners
1613 Blue Hill Avenue
Carthage Plaza
Nationwide Life Insurance Company:
----------------------------------
Shoppes at Onion Creek
SCHEDULE XII
LIST OF MORTGAGE LOANS FOR WHICH A SCHEDULED PAYMENT IS DUE AFTER THE
END OF A COLLECTION PERIOD
Morgan Stanley Mortgage Capital Holdings LLC:
---------------------------------------------
Fifth South Plaza
Easton Town Center
Spenceola Main Street Center
Mills River Shopping Center
General Electric Capital Corporation:
-------------------------------------
Collegiate Commons
Walgreens - Swansboro, NC
Principal Commercial Funding II, LLC:
-------------------------------------
510 Paladin Drive
Royal Bank of Canada:
---------------------
Deer Creek Marketplace
Prospect Square
National City Bank:
-------------------
NONE
NCB, FSB:
---------
5010 Medical Care Court LLC
Carthage Plaza
E Ponce de Leon Retail, LLC
Shoppes of Lucedale
Time Warner
Canal Studio Corp.
51 Seventh Housing Corp.
Family Dollar Portfolio
Fresenius Medical Care Portfolio
Imperial Square Shopping Center
Seven Lakes Shopping Center
Brooklyn Federal Savings Bank
Brooks Holding Corp.
Shaw's Supermarket
Laurel Office Park Building
1613 Blue Hill Ave.
Safeway Plaza
283 6th Ave. Corp.
Duluth Auto Center
The Exchange Building 100
Clarkston Village
Johnstone Portfolio
19 Walker Avenue
Dunwoody Club Center
Ramada Inn - Baltimore
Camden Corners
Lumberton Town Center
Nopper Building
Beco Corporate Center
Anderson Shops
Fidelity Engineering Corp.
Nationwide Life Insurance Company:
----------------------------------
NONE
SCHEDULE XIII
LIST OF MORTGAGE LOANS THAT PERMIT VOLUNTARY PRINCIPAL PREPAYMENT
WITHOUT PAYMENT OF A FULL MONTH'S INTEREST
Morgan Stanley Mortgage Capital Holdings LLC:
---------------------------------------------
NONE
General Electric Capital Corporation:
-------------------------------------
NONE
Principal Commercial Funding II, LLC:
-------------------------------------
NONE
Royal Bank of Canada:
---------------------
NONE
National City Bank:
-------------------
NONE
NCB, FSB:
---------
NONE
Nationwide Life Insurance Company:
----------------------------------
NONE
SCHEDULE XIV
[Reserved]
SCHEDULE XV
[Reserved]
SCHEDULE XVI
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria":
----------------------------------------------------------------------------------------------------------------------------
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 Paying Agent
other triggers and events of default in accordance with the transaction Master Servicers
agreements. Special Servicers
Primary Servicers
1122(d)(1)(ii) Paying Agent
If any material servicing activities are outsourced to third parties, Master Servicers
policies and procedures are instituted to monitor the third party's Special Servicers
performance and compliance with such servicing activities. Primary Servicers
1122(d)(1)(iii) N/A
Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
1122(d)(1)(iv) Paying Agent
A fidelity bond and errors and omissions policy is in effect on the party Master Servicers
participating in the servicing function throughout the reporting period Special Servicers
in the amount of coverage required by and otherwise in accordance with Primary Servicers
the terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Paying Agent
Payments on mortgage loans are deposited into the appropriate custodial Master Servicers
bank accounts and related bank clearing accounts no more than two Special Servicers
business days following receipt, or such other number of days specified Primary Servicers
in the transaction agreements.
1122(d)(2)(ii) Paying Agent
Disbursements made via wire transfer on behalf of an obligor or to an Master Servicers
investor are made only by authorized personnel. Primary Servicers
1122(d)(2)(iii) Master Servicers
Advances of funds or guarantees regarding collections, cash flows or Special Servicers
distributions, and any interest or other fees charged for such advances, Trustee
are made, reviewed and approved as specified in the transaction
agreements.
1122(d)(2)(iv) Paying Agent
The related accounts for the transaction, such as cash reserve accounts Master Servicers
or accounts established as a form of overcollateralization, are Special Servicers
separately maintained (e.g., with respect to commingling of cash) as set Primary Servicers
forth in the transaction agreements.
1122(d)(2)(v) Master Servicers
Each custodial account is maintained at a federally insured depository Special Servicers
institution as set forth in the transaction agreements. For purposes of Primary Servicers
this criterion, "federally insured depository institution" with respect Paying Agent
to a foreign financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
1122(d)(2)(vi) Paying Agent
Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicers
Special Servicers
Primary Servicers
1122(d)(2)(vii)
Reconciliations are prepared on a monthly basis for all asset-backed Paying Agent
securities related bank accounts, including custodial accounts and Master Servicers
related bank clearing accounts. These reconciliations are (A) Special Servicers
mathematically accurate; (B) prepared within 30 calendar days after the Primary Servicers
bank statement cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain explanations
for reconciling items. These reconciling items are resolved within 90
calendar days of their original identification, or such other number of
days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Paying Agent
Reports to investors, including those to be filed with the Commission,
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports:
1122(d)(3)(i)(A) Paying Agent
(A) Are prepared in accordance with timeframes and other terms set forth Party who files
in the transaction agreements; report
1122(d)(3)(i)(B) Paying Agent
(B) Provide information calculated in accordance with the terms specified
in the transaction agreements;
1122(d)(3)(i)(C) Party who files
(C) Are filed with the Commission as required by its rules and report
regulations; and
1122(d)(3)(i)(D) Paying Agent
(D) Agree with investors' or the Paying Agent's records as to the total
unpaid principal balance and number of pool assets serviced by each of
the Master Servicers, Special Servicers and Primary Servicers.
1122(d)(3)(ii) Paying Agent
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Paying Agent
Disbursements made to an investor are posted within two business days to
the Servicer's investor records, or such other number of days specified
in the transaction agreements.
1122(d)(3)(iv) Paying Agent
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank statements.
Pool Asset Administration
1122(d)(4)(i) Custodian
Collateral or security on mortgage loans is maintained as required by the Master Servicers
transaction agreements or related mortgage loan documents. Special Servicers
Primary Servicers
1122(d)(4)(ii) Custodian
Mortgage loan and related documents are safeguarded as required by the
transaction agreements.
1122(d)(4)(iii) Custodian
Any additions, removals or substitutions to the asset pool are made, Master Servicers
reviewed and approved in accordance with any conditions or requirements Special Servicers
in the transaction agreements. Primary Servicers
1122(d)(4)(iv) Master Servicers
Payments on mortgage loans, including any payoffs, made in accordance Primary Servicers
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than two business days after receipt,
or such other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
1122(d)(4)(v) Master Servicers
The Servicer's records regarding the mortgage loans agree with the Primary Servicers
Servicer's records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Master Servicers
Changes with respect to the terms or status of an obligor's mortgage Special Servicers
loans (e.g., loan modifications or re-agings) are made, reviewed and Primary Servicers
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
1122(d)(4)(vii) Master Servicers
Loss mitigation or recovery actions (e.g., forbearance plans, Special Servicers
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
1122(d)(4)(viii) Master Servicers
Records documenting collection efforts are maintained during the period a Special Servicers
mortgage loan is delinquent in accordance with the transaction Primary Servicers
agreements. Such records are maintained on at least a monthly basis, or
such other period specified in the transaction agreements, and describe
the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Master Servicers
Adjustments to interest rates or rates of return for mortgage loans with Primary Servicers
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Master Servicers
Regarding any funds held in trust for an obligor (such as escrow Primary Servicers
accounts): (A) such funds are analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned
to the obligor within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xi) Master Servicers
Payments made on behalf of an obligor (such as tax or insurance payments) Primary Servicers
are made on or before the related penalty or expiration dates, as
indicated on the appropriate bills or notices for such payments, provided
that such support has been received by the servicer at least 30 calendar
days prior to these dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Master Servicers
Any late payment penalties in connection with any payment to be made on Primary Servicers
behalf of an obligor are paid from the servicer's funds and not charged
to the obligor, unless the late payment was due to the obligor's error or
omission.
1122(d)(4)(xiii) Master Servicers
Disbursements made on behalf of an obligor are posted within two business Primary Servicers
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Master Servicers
Delinquencies, charge-offs and uncollectible accounts are recognized and Primary Servicers
recorded in accordance with the transaction agreements.
1122(d)(4)(xv) N/A
Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
SCHEDULE XVII
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-D Item described in
the "Item on Form 10-D" column to the extent such party has knowledge (and in
the case of financial statements required to be provided in connection with Item
6 below, possession) of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement). Each of
the Paying Agent, the Trustee, the Master Servicers, the Primary Servicers and
the Special Servicers (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 or this Agreement.
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool o Master Servicers (only with respect
Performance Information: to 1121(a)(12) as to non-specially
o Only with respect to any serviced loans)
information required by 1121 o Paying Agent
which is NOT included on the o Depositor
Distribution Date Statement
Item 2: Legal Proceedings: o Each Master Servicer (as to itself)
o Item 1117 of Regulation AB (to o Each Special Servicer (as to itself)
the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Paying Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
Special Servicers, to be reported
by the party controlling such
litigation pursuant to Section
9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided
by the Depositor)
o Originators under Item 1110 of
Regulation AB
o Any party under Item 1100(d)(1) of
Regulation AB
Item 3: Sale of Securities and Use of o Depositor
Proceeds
Item 4: Defaults Upon Senior Securities o Paying Agent
o Trustee
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 (including, without o Sponsors
limitations, the net operating income o Sellers
of a significant obligor required to o Master Servicers
be reported under Item 1112(b) o Each Primary Servicer (as to loans
Regulation AB) serviced by it)
Item 7: Significant Enhancement o N/A
Provider Information
Item 8: Other Information (information o Any party responsible for
required to be disclosed on Form 8-K disclosure items on Form 8-K to
that was not properly disclosed) the extent of such items
Item 9: Exhibits o Depositor
o Master Servicers
o Paying Agent
o Trustee
SCHEDULE XVIII
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.5 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-K Item described in
the "Item on Form 10-K" column to the extent such party has actual knowledge
(and in the case of financial statements required to be provided in connection
with 1112(b) below, possession) of such information (other than information as
to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement). Each of
the Paying Agent, the Trustee, the Master Servicers, the Primary Servicers and
the Special Servicers (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 or this Agreement.
--------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
Item 9B: Other Information o Any party responsible for
(information required to be disclosed disclosure items on Form 8-K
on Form 8-K that was not properly
disclosed)
Item 15: Exhibits, Financial Statement o Paying Agent
Schedules o Depositor
Additional Item: o Each Master Servicer (as to itself)
o Each Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation o Paying Agent (as to itself)
AB (to the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
the Special Servicers to be
reported by the party controlling
such litigation pursuant to
Section 9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
Additional Item: o Each Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation (to the extent material to
AB Certificateholders and only as to
affiliations under 1119(a))
o Each Special Servicer (as to itself)
(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Each Primary Servicer (as to
itself)(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Trustee/Paying Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
Additional Item: o N/A
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and o Paying Agent
1115(b) of Regulation AB
SCHEDULE XIX
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.7 of this Agreement to report to the Depositor and the Paying
Agent the occurrence of any event described in the corresponding Form 8-K Item
described in the "Item on Form 8-K" column to the extent such party has actual
knowledge of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement). Each of
the Paying Agent, the Trustee, the Master Servicers, the Primary Servicers and
the Special Servicers (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 or this Agreement.
--------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
--------------------------------------------------------------------------------
Item 1.01- Entry into a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
Item 1.02- Termination of a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
Item 1.03- Bankruptcy or Receivership o Depositor
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to o 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 Servicers (as to itself
Trustee or a servicer retained by it)
o Special Servicers (as to itself
or a servicer retained by it)
o Primary Servicers (as to itself
or a servicer retained by it)
o Trustee (as to itself)
o Paying Agent
o Depositor
Item 6.03- Change in Credit o N/A
Enhancement or External Support
Item 6.04- Failure to Make a Required o Paying Agent
Distribution
Item 6.05- Securities Act Updating o Depositor
Disclosure
Item 7.01- Regulation FD Disclosure o Depositor
Item 8.01 o Depositor
Item 9.01 o Depositor
Schedule XX
SELLER SUB-SERVICERS
Seller Sub-servicers retained as of the Closing Date by the Capmark
Master Servicer
-------------------------------------------------------------------
Mortgage Loan Seller Sub-servicer
------------- -------------------
IDG Retail Portfolio Capstone Realty Advisors, LLC
Hunters Square Office Capstone Realty Advisors, LLC
Richmond Hills Capstone Realty Advisors, LLC
Xxxxxxxxx MHP Capstone Realty Advisors, LLC
Riviera Apartments Capstone Realty Advisors, LLC
Enterprise Xxxxxxx Avenue CB Xxxxxxx Xxxxx
USFS Industrial Distribution Portfolio Keycorp
Milford Crossing HFF
20770-20810 Madrona Avenue Newmark
Art Institute Student Housing HFF
West Lafayette Multifamily Portfolio HFF
0000 00xx Xxxxxx XX Xxxxxxxxx
Xxxxxxxxx Center HFF
Stoneridge Medical Center Pinnacle Financial Group
0000 X Xxxxxx XX Xxxxxxxxx
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxx Realty Advisors
Penn Place HFF
Shoppes at Forest Hill HFF
Spenceola Main Street Center Laureate Capital
Forest Hills Apartments HFF
00 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx Townhomes HFF
Xxxxxxx Place Pinnacle Financial Group
00 Xxxxxx Xxx Xxxxxxxxx
615 Day Hill Road HFF
Nantucket Tutto Sfoglia HFF
Seller Sub-servicers retained as of the Closing Date by the Xxxxx Fargo
Master Servicer
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Mortgage Loan Seller Sub-servicer
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000 Xxxxxxx Xxxxxx Apartments Nationwide Life Insurance Company
Stassney Heights Shopping Center Nationwide Life Insurance Company
Holiday Inn Hotel & Suites - Huntington Nationwide Life Insurance Company
Jurupa Self Sufficiency Center Nationwide Life Insurance Company
Silver Drive Warehouse Nationwide Life Insurance Company
Shops at Onion Creek Nationwide Life Insurance Company
The Baltic Inn Nationwide Life Insurance Company
Virginia Village Shopping Center Nationwide Life Insurance Company
Seller Sub-servicers retained as of the Closing Date by the NCB, FSB
Master Servicer
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Mortgage Loan Seller Sub-servicer
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Imperial Square Shopping Center Grandbridge Real Estate Capital LLC
Safeway Plaza Grandbridge Real Estate Capital LLC
Dunwoody Club Center Grandbridge Real Estate Capital LLC
Laurel Office Park Building Grandbridge Real Estate Capital LLC
Clarkston Village Grandbridge Real Estate Capital LLC
E Xxxxx de Xxxx Retail, LLC Grandbridge Real Estate Capital LLC
Xxxxxxxx Shops Grandbridge Real Estate Capital LLC
Ramada Inn - Baltimore Grandbridge Real Estate Capital LLC
00 Xxxxxx Xxxxxx Xxxxxxxx National Real Estate Finance,
LLC
